Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent: (a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders: (i) executed counterparts of this Agreement and the Guaranty; (ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note; (iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent): (A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto; (B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto; (C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary; (D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and (E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; (iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with: (A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed; (B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request; (i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above; (D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s); (E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and (F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto); (v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation; (vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request; (viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents); (ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (x) executed counterparts of the Post-Closing Agreement; (xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date; (xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent; (xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and
Appears in 2 contracts
Samples: Limited Waiver and Amendment to Credit Agreement (Granite Construction Inc), Credit Agreement (Granite Construction Inc)
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders The Administrative Agent (or by the Administrative Agent with respect to items specified in clause its counsel) shall have received from each party hereto either (vii) below with respect to which the Borrowers have given assurances a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall be delivered promptly following have received (i) from each Borrower, a Note for each Lender as has been requested by such Lender, (ii) from the Guarantors, the Subsidiary Guaranty signed by all such parties and (iii) from the Company, the Company Guaranty signed by the Company.
(c) The Administrative Agent shall have received the favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation covering such other matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with or the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, Transactions as the case may be, under all insurance policies maintained with respect Required Lenders shall reasonably request. The Borrowers hereby request such counsel to the assets and properties of the Loan Parties that constitute Collateral;deliver such opinions.
(ivd) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to The Administrative Agent shall have received such documents and certificates as the Administrative Agent or the Collateral Agent, or as otherwise its counsel may reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts request relating to the applicable Mortgage together with:
(A) to organization, existence and good standing of each Credit Party, the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage authorization of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Transactions to which such Loan Credit Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed any other legal matters relating to the Administrative AgentCredit Parties, Collateral Agent and each Lenderthis Agreement, of Xxxxx Day, counsel for the Borrowers and the Loan PartiesDocuments or the Transactions, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case all in form and substance satisfactory to the Administrative Agent concerning and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Loan Parties Closing Date and signed by the Loan Documents (which may include some or all President of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) Company or a certificate of a Responsible Financial Officer of the Company, confirming that:
(i) on the Closing Date, both before and after giving effect to the Credit Extensions and the other Transactions occurring on such date, no Default or Event of Default shall have occurred and be continuing; and
(ii) the representations and warranties contained in Article V of this Agreement (including, without limitation, the representation and warranty set forth in Section 5.04(b)) shall be true in all material respects on and as of the date of such Borrowing except for changes expressly permitted herein and except to the extent that such representations and warranties relate solely to an earlier date (in which event such representations and warranties shall have been true in all material respects on and as of such earlier date).
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (i) any fees payable under this Agreement or the Fee Letter, and (ii) to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company either hereunder.
(Ag) attaching The Administrative Agent shall have received certified copies of all consents, licenses approvals, authorizations, registrations, filings and approvals orders required to be made or obtained by any Governmental Authority or any other Person all Borrowers and all Guarantors in connection with the execution, delivery and performance financings evidenced by each Loan Party this Agreement and the validity against such Loan Party of the Loan Documents to which it is a partyother Transactions, and all such consents, licenses approvals, authorizations, registrations, filings and approvals orders shall be in full force and effecteffect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority in respect of such financings or other Transactions shall be ongoing.
(h) Since May 31, 2013, there shall have occurred no events, acts, conditions or occurrences of whatever nature, singly or in the aggregate, that have had, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;.
(xi) executed counterparts No actions, suits or other legal proceedings shall be pending or, to the knowledge of the Post-Closing Agreement;
(xi) executed counterparts Company, threatened, against or affecting the Borrowers or the Guarantors and seeking to enjoin, restrain, or otherwise challenge or contest the validity of the financings evidenced by each Lender to this Agreement as of or the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory other Transactions. The Company shall have delivered or otherwise made available to the Administrative Agent that no default or event and the Lenders the consolidated financial statements for the Company and its Subsidiaries for the Fiscal Year ended May 31, 2013, including balance sheet and income and cash flow statements, audited by independent public accountants of default under recognized national standing and prepared in conformity with GAAP, and the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief consolidated financial officer statements of the Company certifying thatand its Subsidiaries for the Fiscal Quarter and year-to-date period ended November 30, after giving effect 2013, and such other financial information as the Administrative Agent or the Required Lenders may have reasonably requested.
(j) The Company shall have duly completed and submitted to this Agreement the Administrative Agent a Loan Notice for funding of its Loans, and the Credit Extensions made or continued on the Closing DateAdministrative Agent shall have received, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days not less than three Business Days prior to the Closing Date, the Borrowers a fully-executed Funding Indemnity Letter.
(k) The Administrative Agent shall have provided received evidence that (i) the 2010 Credit Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date and (ii) the 2012 Credit Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date.
(l) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents (and each Lender that has signed this Agreement shall be deemed to have represented that the requirements of this clause (l) have been met with respect to such Lender the documentation Lender).
(m) The Administrative Agent shall have received all other documents, certificates, and other information so requested as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in connection with applicable “know your customer” and anti-money-laundering rules and regulationsthis Section 4.01, including each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Act, in each case at least five days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date; andDate specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Global Payments Inc), Credit Agreement (Global Payments Inc)
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders The Administrative Agent (or by the Administrative Agent with respect to items specified in clause its counsel) shall have received from each party hereto either (vii) below with respect to which the Borrowers have given assurances a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall be delivered promptly following have received (i) from each Borrower, a Note for each Lender as has been requested by such Lender, (ii) from the Guarantors, the Subsidiary Guaranty signed by all such parties and (iii) from the Company, the Company Guaranty signed by the Company.
(c) The Administrative Agent shall have received the favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation covering such other matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with or the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, Transactions as the case may be, under all insurance policies maintained with respect Required Lenders shall reasonably request. The Borrowers hereby request such counsel to the assets and properties of the Loan Parties that constitute Collateral;deliver such opinions.
(ivd) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to The Administrative Agent shall have received such documents and certificates as the Administrative Agent or the Collateral Agent, or as otherwise its counsel may reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts request relating to the applicable Mortgage together with:
(A) to organization, existence and good standing of each Credit Party, the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage authorization of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Transactions to which such Loan Credit Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed any other legal matters relating to the Administrative AgentCredit Parties, Collateral Agent and each Lenderthis Agreement, of Xxxxx Day, counsel for the Borrowers and the Loan PartiesDocuments or the Transactions, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case all in form and substance satisfactory to the Administrative Agent concerning and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Loan Parties Closing Date and signed by the Loan Documents (which may include some or all President of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) Company or a certificate of a Responsible Financial Officer of the Company, confirming that:
(i) on the Closing Date, both before and after giving effect to the Credit Extensions and the other Transactions occurring on such date, no Default or Event of Default shall have occurred and be continuing; and
(ii) the representations and warranties contained in Article V of this Agreement (including, without limitation, the representation and warranty set forth in Section 5.04(b)) shall be true in all material respects on and as of the date of such Borrowing except for changes expressly permitted herein and except to the extent that such representations and warranties relate solely to an earlier date (in which event such representations and warranties shall have been true in all material respects on and as of such earlier date).
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (i) any fees payable under this Agreement or the Fee Letter, and (ii) to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company either hereunder.
(Ag) attaching The Administrative Agent shall have received certified copies of all consents, licenses approvals, authorizations, registrations, filings and approvals orders required to be made or obtained by any Governmental Authority or any other Person all Borrowers and all Guarantors in connection with the execution, delivery and performance financings evidenced by each Loan Party this Agreement and the validity against such Loan Party of the Loan Documents to which it is a partyother Transactions, and all such consents, licenses approvals, authorizations, registrations, filings and approvals orders shall be in full force and effecteffect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority in respect of such financings or other Transactions shall be ongoing.
(h) Since May 31, 2013, there shall have occurred no events, acts, conditions or occurrences of whatever nature, singly or in the aggregate, that have had, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;.
(xi) executed counterparts No actions, suits or other legal proceedings shall be pending or, to the knowledge of the Post-Closing Agreement;
(xi) executed counterparts Company, threatened, against or affecting the Borrowers or the Guarantors and seeking to enjoin, restrain, or otherwise challenge or contest the validity of the financings evidenced by each Lender to this Agreement as of or the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory other Transactions. The Company shall have delivered or otherwise made available to the Administrative Agent that no default or event and the Lenders the consolidated financial statements for the Company and its Subsidiaries for the Fiscal Year ended May 31, 2013, including balance sheet and income and cash flow statements, audited by independent public accountants of default under recognized national standing and prepared in conformity with GAAP, and the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief consolidated financial officer statements of the Company certifying thatand its Subsidiaries for the Fiscal Quarter and year-to-date period ended November 30, after giving effect 2013, and such other financial information as the Administrative Agent or the Required Lenders may have reasonably requested.
(j) The Company shall have duly completed and submitted to this Agreement the Administrative Agent a Loan Notice for funding of its Loans, and the Credit Extensions made or continued on the Closing DateAdministrative Agent shall have received, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days not less than three Business Days prior to the Closing Date, the Borrowers a fully-executed Funding Indemnity Letter.
(k) The Administrative Agent shall have provided to such Lender received evidence that (i) the documentation 2010 Credit Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date and (ii) the 2012 Credit Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date.
(l) The Administrative Agent shall have received all other documents, certificates, and other information so requested as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in connection with applicable “know your customer” and anti-money-laundering rules and regulationsthis Section 4.01, including each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Act, in each case at least five days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date; andDate specifying its objection thereto.
Appears in 2 contracts
Samples: Term Loan Agreement (Global Payments Inc), Term Loan Agreement (Global Payments Inc)
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders The Administrative Agent (or by its counsel) shall have received from the Administrative Agent with respect to items specified Credit Parties and, in clause the case of this Agreement, each Lender, either (vii) below with respect to which a counterpart of this Agreement and the Borrowers have given assurances Security Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement and the Security Agreement.
(b) The Administrative Agent (or its counsel) shall be delivered promptly following have received from each Borrower, a Note for each Lender as has been requested by such Lender.
(c) The Administrative Agent shall have received the satisfactory written opinions from the Company’s counsel (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, and covering such other matters relating to the Collateral Credit Parties, this Agreement, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Credit Party, the authorization of the Lenders:
(i) executed counterparts of this Agreement Transactions to which such Credit Party is a party, and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation any other legal matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security AgreementLoan Documents or the Transactions, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable all in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;its counsel.
(viiie) The Administrative Agent shall have received (i) a certificate of Solvency Certificate and (ii) a Responsible certificate, dated the Closing Date and signed by the Chief Executive Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative AgentCompany, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer President of the Company certifying or an Authorized Officer of the Company, confirming that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and:
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders The Administrative Agent (or by the Administrative Agent with respect to items specified in clause its counsel) shall have received from each party hereto either (vii) below with respect to which the Borrowers have given assurances a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall be delivered promptly following have received (i) from each Borrower, a Note for each Lender as has been requested by such Lender, (ii) from the Guarantors, the Subsidiary Guaranty signed by all such parties and (iii) from the Company, the Company Guaranty signed by the Company.
(c) The Administrative Agent shall have received the favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation covering such other matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with or the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, Transactions as the case may be, under all insurance policies maintained with respect Required Lenders shall reasonably request. The Borrowers hereby request such counsel to the assets and properties of the Loan Parties that constitute Collateral;deliver such opinions.
(ivd) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to The Administrative Agent shall have received such documents and certificates as the Administrative Agent or the Collateral Agent, or as otherwise its counsel may reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts request relating to the applicable Mortgage together with:
(A) to organization, existence and good standing of each Credit Party, the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage authorization of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Transactions to which such Loan Credit Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed any other legal matters relating to the Administrative AgentCredit Parties, Collateral Agent and each Lenderthis Agreement, of Xxxxx Day, counsel for the Borrowers and the Loan PartiesDocuments or the Transactions, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case all in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;its counsel.
(viiie) The Administrative Agent shall have received a certificate of a Responsible Officer certificate, dated the Closing Date and signed by the President of the Company either (A) attaching copies of all consentsor a Financial Officer, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);confirming that:
(ixi) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent both before and (B) each Guarantor, together with after giving effect to the Credit Extensions and the other Loan PartiesTransactions occurring on such date, is Solvent;no Default or Event of Default shall have occurred and be continuing; and
(xiiiii) the representations and warranties contained in Article V of this Agreement (Aincluding, without limitation, the representation and warranty set forth in Section 5.04(b)) upon shall be true in all material respects on and as of the reasonable request date of any Lender made at least five days such Borrowing except for changes expressly permitted herein and except to the extent that such representations and warranties relate solely to an earlier date (in which event such representations and warranties shall have been true in all material respects on and as of such earlier date).
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (i) any fees payable under this Agreement or the Borrowers shall have provided to such Lender the documentation Fee Letter, and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior (ii) to the Closing Date; andextent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this This Agreement as an amendment shall not become effective, and restatement of the Existing Credit Agreement and the obligation of the L/C no Lender or Issuer and each Lender shall be required to make its the initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of unless and until the following conditions precedent:
(a) Unless waived by Agent shall have received all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, and in the Collateral case of documents, in the number of originals requested by the Agent (except that only one original of each requested Note shall be signed):
(a) This Agreement executed by each party thereto.
(b) The Security Agreement duly executed by the Borrower and each of Guarantor (as amended, the Lenders“Security Agreement”), together with:
(i) executed counterparts UCC-1 Financing Statements in form appropriate for filing under the UCC of this Agreement and all jurisdictions in which any Loan Party is organized in form satisfactory to the GuarantyAgent;
(ii) (A) a Revolving Credit Note executed by copies of UCC tax and judgment lien searches, or equivalent reports in such jurisdictions as the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;Agent may reasonably request; and
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property Perfection Certificate (as defined in the Security Agreement) listed on Schedule 9(e) ), duly executed by each of the Loan Parties.
(c) a Patent Security Agreement, Qualifying Control Agreements Agreement and Trademark Security Agreement (as each such term is defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained Agreement and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(sapplicable), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each applicable Loan Party relating theretoin appropriate form for filing with the United States Patent & Trademark Office, as applicable (each, an “Intellectual Property Security Agreement”);.
(vd) such [Reserved].
(e) Such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;.
(vif) such Such documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage (or similar status) in business in the its jurisdiction of its organization or formation;organization.
(viig) a customary opinionA favorable opinion of Xxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, Collateral Agent and each Lenderthe Lenders, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory as to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;set forth in Exhibit G.
(viiih) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a A certificate signed by a Responsible Officer of each the Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(b) and (bc) have been satisfied and (B) that (i) the Company (as defined in the Merger Agreement) has not become subject to any action or event which resulted in or may likely result in a “Company Material Adverse Effect” (as defined in the Merger Agreement) and (ii) other than changes or effects prior to October 18, 2010 in connection with specific events (and not general economic or industry conditions) applicable specifically to the Borrower and/or its Subsidiaries as disclosed in the Borrower’s SEC filings (form 10-K, 10-Q and 8-K) prior to October 18, 2010 (but, for the avoidance of doubt, not excluding any changes or effects subsequent to such disclosure or the subsequent worsening of any condition beyond what was described in such SEC filings), there has been no event change, occurrence or circumstance development since the date of the Audited Financial Statements of the Borrower and its Subsidiaries (other than the Acquired Business and its Subsidiaries), that has had or could be reasonably expected to have, either individually or in the aggregate, could reasonably be expected to have a “Material Adverse Effect;
” (x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders both before and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued Transaction) on the Closing DateBorrower and its Subsidiaries (other than the Acquired Business and its Subsidiaries), taken as a whole.
(Ai) each BorrowerA certificate attesting to the Solvency of the Loan Parties, individuallytaken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, substantially in the form of Exhibit H.
(j) Evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is Solvent and (B) each Guarantorin effect, together with the other certificates of insurance, naming the Agent, on behalf of the Secured Creditors, as an additional insured or loss payee, as the case may be, under all insurance policies (including any flood insurance policies) maintained with respect to the assets and properties of the Loan Parties, is Solvent;Parties that constitutes Collateral.
(xiiik) Evidence reasonably satisfactory to the Agent that the Existing Credit Agreement has been, or concurrently with the Effective Date is being, terminated (A) upon subject to the reasonable request survival of any provisions thereof that expressly survive such termination) and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Effective Date are being, released.
(l) Evidence reasonably satisfactory to the Agent that the Merger shall be consummated pursuant to the Merger Agreement substantially concurrently with the funding of the Term B Loans on the Effective Date without any waiver or amendment thereof that is materially adverse to the Lenders without the written consent of the Required Lenders. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender made at least five days that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender unless the Agent shall have received notice from such Lender prior to the Closing proposed Effective Date specifying its objection thereto. The Agent shall promptly notify the Borrower and the Lenders of the occurrence of the Effective Date, the Borrowers which notice shall have provided to such Lender the documentation be conclusive and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andbinding.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (viiv) below with respect to which the Borrowers have Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) (A) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viiv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the jurisdiction conduct of its organization or formationbusiness requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiv) a customary an opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers Borrower and the Loan Parties, substantially in each case in the form and substance satisfactory to the Administrative Agent of Exhibit G concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent and the Required Lenders may reasonably request;
(viiivi) a certificate of a Responsible Officer of the Company each Loan Party either (A) A attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents)required;
(ixvii) a certificate signed by a Responsible Officer of each the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(xviii) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Senior Note Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xiiix) evidence satisfactory to the Administrative Agent that all Indebtedness of the Borrower, any Guarantor and their Subsidiaries existing on the Closing Date under the Existing Credit Agreement has been repaid or cancelled, all documentation representing such Indebtedness shall have been terminated and all Guarantees, Liens and security interests associated therewith have been released, or that reasonably adequate measures have been or concurrently with the Closing Date are being taken to terminate such documentation and release such Guarantees, Liens and security interests, except as otherwise agreed by Administrative Agent; provided that, upon execution of this Agreement, each Lender hereto that is a certificate signed party to the Existing Credit Agreement waives the notice provision for early termination of the Existing Credit Agreement set forth in Section 2.06 thereunder; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the chief financial officer Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Company certifying that, after giving effect Administrative Agent (directly to this Agreement and such counsel if requested by the Credit Extensions made Administrative Agent) to the extent invoiced prior to or continued on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (A) each Borrowerprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Notwithstanding anything to the contrary contained in this Section 4.01, individually, is Solvent and (B) each Guarantor, together with neither this Agreement nor any of the other Loan PartiesDocuments shall become effective or be binding on any party unless the preceding conditions have been satisfied (or waived, is Solvent;
(xiii) (A) upon as appropriate), on or before 5:00 p.m., on July 31, 2010. Without limiting the reasonable request generality of any the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender made at least five days that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this This Agreement as an amendment shall not become effective, and restatement of the Existing Credit Agreement and the obligation of the L/C no Lender or Issuer and each Lender shall be required to make its the initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of unless and until the following conditions precedent:
(a) Unless waived by Agent shall have received all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, and in the Collateral case of documents, in the number of originals requested by the Agent (except that only one original of each requested Note shall be signed):
(a) This Agreement executed by each party thereto.
(b) The Security Agreement duly executed by the Borrower and each of Guarantor (as amended, the Lenders“Security Agreement”), together with:
(i) executed counterparts UCC-1 Financing Statements in form appropriate for filing under the UCC of this Agreement and all jurisdictions in which any Loan Party is organized in form satisfactory to the GuarantyAgent;
(ii) (A) a Revolving Credit Note executed by copies of UCC, tax and judgment lien searches, or equivalent reports in such jurisdictions as the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;Agent may reasonably request; and
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property Perfection Certificate (as defined in the Security Agreement) listed on Schedule 9(e) ), duly executed by each of the Loan Parties.
(c) A Patent Security Agreement, Qualifying Control Agreements Agreement and Trademark Security Agreement (as each such term is defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained Agreement and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(sapplicable), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each applicable Loan Party relating theretoin appropriate form for filing with the United States Patent & Trademark Office, as applicable (each, an “Intellectual Property Security Agreement”);.
(vd) such certificates A copy of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) the audited consolidated balance sheet of Responsible Officers the Borrower and its Subsidiaries as at the end of each Loan Party as of the Administrative Agent may require evidencing the identityfiscal years ending December 31, authority 2015 and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement December 31, 2016 and the other Loan Documents to which related consolidated statements of income, shareholders’ equity and cash flows for such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedyear, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, setting forth in each case in comparative form and substance satisfactory to the Administrative Agent concerning figures for the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a partyprevious fiscal year, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed accompanied by the chief financial officer report of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made PricewaterhouseCoopers LLP or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and antianother nationally-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andrecognized independent public accounting firm.
Appears in 1 contract
Samples: Credit Agreement (Hanger, Inc.)
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (viiv) below with respect to which the Borrowers have Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) (A) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viiv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the jurisdiction conduct of its organization or formationbusiness requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(viiv) a customary an opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers Borrower and the Loan Parties, substantially in each case in the form and substance satisfactory to the Administrative Agent of Exhibit G concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent and the Required Lenders may reasonably request;
(viiivi) a certificate of a Responsible Officer of the Company each Loan Party either (A) A attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents)required;
(ixvii) a certificate signed by a Responsible Officer of each the Borrower certifying (A) that the conditions specified in Sections 4.02(a4.03(a) and (b) have been satisfied and satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Adjusted Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(xviii) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Senior Note Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xiiix) evidence satisfactory to the Administrative Agent that all Indebtedness of the Borrower, any Guarantor and their Subsidiaries existing on the Closing Date under the Existing Credit Agreement has been repaid or cancelled, all documentation representing such Indebtedness shall have been terminated and all Guarantees, Liens and security interests associated therewith have been released, or that reasonably adequate measures have been or concurrently with the Closing Date are being taken to terminate such documentation and release such Guarantees, Liens and security interests, except as otherwise agreed by Administrative Agent; provided that, upon execution of this Agreement, each Lender hereto that is a certificate signed party to the Existing Credit Agreement waives the notice provision for early termination of the Existing Credit Agreement set forth in Section 2.06 thereunder; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the chief financial officer Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Company certifying that, after giving effect Administrative Agent (directly to this Agreement and such counsel if requested by the Credit Extensions made Administrative Agent) to the extent invoiced prior to or continued on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (A) each Borrowerprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Notwithstanding anything to the contrary contained in this Section 4.01, individually, is Solvent and (B) each Guarantor, together with neither this Agreement nor any of the other Loan PartiesDocuments shall become effective or be binding on any party unless the preceding conditions have been satisfied (or waived, is Solvent;
(xiii) (A) upon as appropriate), on or before 5:00 p.m., on July 31, 2010. Without limiting the reasonable request generality of any the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender made at least five days that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(C) (i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (viiv) below with respect to which the Borrowers have Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (or, in the case of the opinion of counsel, by such counsel), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateDate acceptable to the Administrative Agent) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent Lenders and each of the Lenderstheir respective legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) (A) if requested by a Revolving Credit Lender, a Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit such Lender, such Note and (B) a Term Note executed by the Borrowers to be in favor of each Term Lender requesting a Term Notean original face amount equal to such Lender’s Commitment;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of respecting resolutions or other actionactions, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent or any Lender may require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viiv) such documents and certifications evidence as the Administrative Agent and/or any Lender may reasonably require to evidence verify that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Loan Party’s Organization Documents, certificates of good standing and qualification to engage in business and tax clearance certificates; provided that, to the jurisdiction extent that any of its organization or formationthe tax clearance certificates required under this sub-paragraph (iv) have not been received by the Borrower prior to the Closing Date, the Borrower shall only be required to deliver such tax clearance certificates in accordance with Section 6.14;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ixv) a certificate signed by a Responsible Officer of each the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(xvi) executed counterparts an opinion of counsel to each Loan Party, addressing the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement matters set forth on Exhibit G, in accordance with Section 22 thereof, sufficient in number for distribution form and substance satisfactory to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and ;
(vii) evidence satisfactory to the Administrative Agent that no default or event of default the termination in accordance with its terms of the commitments under the Permitted Notes Documents existsExisting Credit Agreement, or would result from and the effectiveness repayment of all outstanding amounts thereunder, together with interest fees and other charges payable, provided that, upon execution of this Agreement, each Lender hereto that is a party to the Existing Credit Agreement waives the notice provision for early termination of the Existing Credit Agreement set forth in Section 2.06 thereunder; and
(viii) such other assurances, certificates, documents, consents, approvals, materials or opinions as the Administrative Agent, the L/C Issuer or any Credit Extension hereunder Lender reasonably may require.
(b) Any fees required to be paid on or from before the application Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable Attorney Costs of the proceeds thereof on Administrative Agent to the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect extent invoiced prior to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrowerplus such additional amounts of reasonable Attorney Costs as shall constitute its reasonable estimate of such Attorney Costs incurred or to be incurred by it through the closing proceedings, individuallyprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent. Notwithstanding anything to the contrary contained in this Section 4.01, is Solvent and (B) each Guarantor, together with neither this Agreement nor any of the other Loan PartiesDocuments shall become effective or be binding on any party unless the preceding conditions have been satisfied (or waived, is Solvent;
(xiii) (A) upon as appropriate), on or before 5:00 p.m., on June 24, 2005. Without limiting the reasonable request generality of any the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender made at least five days that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the each L/C Issuer and of each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction or waiver of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCredit Party (to the extent applicable), each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, executed and delivered by the GuarantyAdministrative Agent, the Borrowers, the Guarantors and each Lender listed on Schedule 2.01;
(ii) (A) a Revolving Credit Note Note, Term A-1 Note, and/or CAD Term Note, as applicable, executed by the Borrowers in favor of each Revolving Credit applicable Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term such Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Credit Party is a party;
(viiv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Credit Party is duly organized or formed, and that each Loan Credit Party is validly existing, in good standing and qualified to engage in business in the jurisdiction its state of its organization or formationorganization;
(viiv) a customary opinionfavorable opinions of (A) Xxxxxx Xxxxxxxxx Xxxxxx & Xxxxxx LLP, counsel for the Credit Parties, and (B) Xxxxxxx LLP, special Maryland counsel for the REIT Guarantor, in each case, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory as to the Administrative Agent such matters concerning the Loan Credit Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viiivi) a certificate of signed by a Responsible Officer of the Company either REIT Guarantor certifying (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person that the conditions specified in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or Section 4.02 have been satisfied; (B) stating that no such consentsaction, licenses suit, investigation or approvals are so required proceeding is pending or, to the knowledge of any Credit Party, is threatened in any court or before any arbitrator or governmental authority related to the Facilities or that would reasonably be expected to have a Material Adverse Effect; (except for C) that there has not occurred since the date of the Audited Financial Statements, any event or condition that has had, or would reasonably be expected, either individually or in the aggregate, to have, a Material Adverse Effect and (xD) the consentscurrent Debt Ratings;
(vii) a certificate, licenses and approvals which have been duly obtained, taken, given substantially in the form of Exhibit E or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant otherwise satisfactory to the Loan DocumentsAdministrative Agent, signed by a Responsible Officer of the Parent Borrower or the REIT Guarantor and evidencing that, as of the date of the Restatement Effective Date, the Credit Parties are in pro forma compliance with the financial covenants contained in Section 7.10, and including a schedule of Unencumbered Properties, all in form and detail reasonably satisfactory to the Administrative Agent (such certificate, the “Pro Forma Restatement Effective Date Compliance Certificate”);
(ixviii) a certificate signed by a Responsible Officer of each Borrower Credit Party certifying (A) that no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event execution, delivery or circumstance since the date of the Audited Financial Statements that has had performance by, or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agentenforcement against, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness Credit Parties of this Agreement or any Credit Extension hereunder other Loan Document, except for such approvals, consents, exemptions, authorizations or from the application of the proceeds thereof on the Closing Dateother actions or notices or filings which have already been completed or obtained;
(xiiix) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (Astatements referenced in Sections 5.05(a) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;b); and
(xiiix) (A) upon such other documents, instruments, agreements or information as the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andAdministrative Agent reasonably may reasonably request.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) in connection with the executed counterparts of an affirmation to the Security Agreement, Agreement and Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not currently on file with the Collateral Agent):, to the extent not previously delivered to the Administrative Agent or the Collateral Agent:
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other 70290124_9 actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (v) or (vi) below with respect to which the Borrowers have Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateDate acceptable to the Administrative Agent) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent Lenders and each of the Lenderstheir respective legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) (A) if requested by a Revolving Credit Lender, a Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit such Lender, such Note and (B) a Term Note executed by the Borrowers to be in favor of each Term Lender requesting a Term Notean original face amount equal to such Lender's Commitment;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of respecting resolutions or other actionactions, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent or any Lender may require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viiv) such documents and certifications evidence as the Administrative Agent and/or any Lender may reasonably require to evidence verify that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Loan Party's Organization Documents, certificates of good standing and qualification to engage in business and tax clearance certificates; provided that, to the jurisdiction extent that any of its organization or formationthe tax clearance certificates required under this sub-paragraph (iv) have not been received by the Borrower prior to June 29, 2001, the Borrower shall only be required to deliver such tax clearance certificates in accordance with Section 6.14;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ixv) a certificate signed by a Responsible Officer of each the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that which has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect;
(xvi) executed counterparts an opinion of counsel to each Loan Party substantially in the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as form of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement Exhibit F in accordance with Section 22 thereof, sufficient in number for distribution form and substance satisfactory to the Administrative Agent, the Collateral Agent, the Permitted Noteholders Lenders and the Borrowers, and their respective legal counsel;
(vii) evidence satisfactory to the Administrative Agent that no default the Prior Credit Facility has been or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on concurrently with the Closing Date;
Date is being terminated (xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andall Indebtedness
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment Amended and restatement of the Existing Restated Credit Agreement and the obligation of the each Lender and L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the The Administrative Agent’s receipt of the following, each of which shall be originals originals, facsimiles or telecopies “pdf” electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) a Note executed counterparts by the Borrower in favor of this Agreement and the Guarantyeach Lender requesting a Note;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens certificate of the Collateral Agent under secretary or the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens assistant secretary of the Collateral Agent under such Security Instruments as a first priority Lien in Borrower (attaching resolutions and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require reasonably require) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a partyDocuments;
(viiii) such documents and certifications a certificate as to the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in (or such other customary functionally equivalent certificate) of the jurisdiction Borrower from the Secretary of its organization State (or formationother applicable Governmental Authority) of Oklahoma;
(viiiv) a customary opinionfavorable opinions of counsel to the Borrower, addressed to the Administrative Agent, Collateral Agent and each LenderLender as of the Closing Date, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some Arrangers, issued by the following firms or all of the Mortgages) and as other counsel reasonably satisfactory to such matters and jurisdictions as the Administrative AgentAgent (i) GableGotwals, Collateral Agent may reasonably request;(ii) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special New York counsel to the Borrower, and (iii) Xxxxxxxx & Xxxx, LLP, special Kansas counsel to the Borrower, for legal opinions regarding receipt of all material public utility regulatory approvals from the Kansas Corporation Commission required in connection with the ONE Gas Separation Transactions; and
(viiiv) a certificate of a Responsible Officer of the Company Borrower (A) either (Ax) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a partyDocuments, and such consents, licenses and approvals shall be in full force and effect, or (By) stating that no such consents, licenses or approvals are so required required, (except for (xB) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant certifying as to the Loan Documents);
Debt Ratings of the Borrower, (ixC) certifying as to the solvency of the Borrower and its Subsidiaries (on a certificate signed by consolidated basis) on a Responsible Officer pro forma basis after giving effect to the ONE Gas Separation Transactions, (D) certifying as to the satisfaction of each Borrower certifying (A) that the conditions specified set forth in Sections 4.02(a) and clauses (b) have been satisfied through (e) of this Section 4.01, and (BE) in the event that Schedule 5.13 is no longer accurate, attaching an updated version of Schedule 5.13.
(b) Before and after giving effect to the consummation of the ONE Gas Separation Transactions (i) no Default or Event of Default shall exist, (ii) the representations and warranties of the Borrower contained in Article V shall be true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent that any such representation or warranty is qualified by materiality, and (iii) there has shall have been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (A) a Material Adverse Effect;
(x) executed counterparts material adverse change in, or a material adverse effect upon, the operations, assets or financial condition of the Post-Closing Agreement;
Borrower and its Restricted Subsidiaries taken as a whole (xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement the ONE Gas Separation Transactions), or ONEOK Partners, L.P. and its Subsidiaries, taken as a whole; provided however (x) a downgrade by S&P and/or Xxxxx’x of their respective Debt Ratings shall not, in and of itself, be deemed “materially adverse”, and (y) the Credit Extensions made or continued on fact that the Closing DateBorrower is unable to borrow in the commercial paper market shall not, (A) each Borrowerin and of itself, individuallybe deemed to be “materially adverse”, is Solvent and (B) each Guarantora material impairment of the ability of the Borrower to perform its payment obligations under any Loan Document to which it is a party, together or (C) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document.
(c) All partnership and company consents and approvals and all material governmental and third-party consents and approvals necessary in connection with the ONE Gas Separation Transactions shall have been obtained and shall be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any governmental, regulatory or other Loan Parties, is Solvent;similar authority which would restrain in a materially adverse manner or prevent or otherwise impose materially adverse conditions on the ONE Gas Separation Transactions.
(xiiid) The ONE Gas Separation Transactions shall have been consummated or shall be consummated substantially concurrently with satisfaction of the other conditions precedent set forth in this Section 4.01 (Ai) upon in compliance in all material respects with applicable Law and regulatory approvals and (ii) in all material respects as described in the reasonable request Registration Statement.
(e) The Borrower shall have received, or shall receive substantially concurrently with satisfaction of the other conditions precedent set forth in this Section 4.01, a special dividend, distribution or other payment as described in the Registration Statement, in an amount not less than $1,000,000,000.
(f) In the event that the Borrower elects to make any Lender made at least changes to any of Schedules 1.01A, 7.07 and 7.10, then not later than five days Business Days (or such shorter period as the Administrative Agent may approve) prior to the Closing Date, the Borrowers Administrative Agent shall have provided received from the Borrower a written notice setting forth such proposed changes, which notice the Administrative Agent shall promptly distribute to the Lenders. To the extent that such Lender proposed changes to any such Schedules are reasonably approved by the documentation Administrative Agent and other information so requested the Arrangers and Book Managers, then each such Schedule shall be deemed amended as set forth in such notice upon the Closing Date.
(g) Payment by the Borrower of amounts required to be paid pursuant to Section 2.07 of the Credit Agreement in connection with applicable “know your customer” the reduction of the Commitments of the Lenders and anti-money-laundering rules and regulationstermination of the Commitments of any Departing Lender as defined in the Amendment Agreement, including payment by the ActBorrower of accrued interest, fees and other amounts which are required to be paid to Departing Lenders, if any, and Lenders whose Commitments are being reduced; and payment by the Borrower, to the Administrative Agent for the benefit of the Lenders, of accrued Facility Fees and to the extent invoiced, accrued Letter of Credit Fees.
(h) Any fees and expenses required to be paid by the Borrower on or before the Closing Date shall have been paid, including upfront fees payable to Lenders and fees payable to the Joint Lead Arrangers and Book Managers and the Administrative Agent.
(i) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent and the Left Lead Arranger to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Left Lead Arranger). Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each case at least five days Lender that has signed the Amendment Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Lenders and the Borrower of the Closing Date; and. Such notice shall be binding and conclusive.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower;
(ii) (A) a Revolving Credit Note executed by the Borrowers each Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation the Security Agreement and Pledge Agreement, sufficient in number for distribution to the Security Agreement, Pledge Agreement Collateral Agent and the Aircraft Security Agreementeach Borrower, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):with:
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s 's loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages an executed Mortgage with respect to each Mortgaged Property listed on Exhibit II in recordable form, and, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s 's liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(C) if requested by the Administrative Agent, (i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral AgentMortgage, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) evidence of flood insurance coverage satisfactory to the Collateral Agent for each Mortgaged Property located in a completed “Life-of-Loan” Federal Emergency Management Agency specified flood hazard zone pursuant to a Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto)Determination;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the jurisdiction conduct of its organization or formationbusiness requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; provided that at the discretion of the Administrative Agent, the delivery of any tax clearance certificates with respect to any such jurisdictions shall not be a condition to the effectiveness of this Agreement and the initial Credit Extension hereunder, but shall be delivered as required under Section 6.13;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent and the Required Lenders may reasonably request;
(viii) a certificate of a Responsible Officer of the Company each Loan Party either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents)required;
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to the Closing Date for which financial statements have been filed with the SEC;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereofAgreement, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) to the extent not previously delivered, copies of (A) the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal years ended December 31, 2009 and 2010, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal years of the Company and its Subsidiaries, including the notes thereto, and (B) the Audited Financial Statements and interim financial statements of the Company and its Subsidiaries for the fiscal quarter ended June 30, 2012;
(xiii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;.
(xiiixiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Collateral Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(Ab) upon the reasonable request of any Lender made at least five days prior Any fees required to be paid on or before the Closing DateDate shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have provided paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such Lender counsel if requested by the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including Administrative Agent) to the Act, in each case extent invoiced at least five days two Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date; andDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders The Administrative Agent (or by the Administrative Agent with respect to items specified in clause its counsel) shall have received from each party hereto either (vii) below with respect to which the Borrowers have given assurances a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall be delivered promptly following have received (i) from each Borrower, a Note for each Lender as has been requested by such Lender, (ii) from the Guarantors, the Subsidiary Guaranty signed by all such parties and (iii) from the Company, the Company Guaranty signed by the Company.
(c) The Administrative Agent shall have received the favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation covering such other matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with or the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, Transactions as the case may be, under all insurance policies maintained with respect Required Lenders shall reasonably request. The Borrowers hereby request such counsel to the assets and properties of the Loan Parties that constitute Collateral;deliver such opinions.
(ivd) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to The Administrative Agent shall have received such documents and certificates as the Administrative Agent or the Collateral Agent, or as otherwise its counsel may reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts request relating to the applicable Mortgage together with:
(A) to organization, existence and good standing of each Credit Party, the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage authorization of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Transactions to which such Loan Credit Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed any other legal matters relating to the Administrative AgentCredit Parties, Collateral Agent and each Lenderthis Agreement, of Xxxxx Day, counsel for the Borrowers and the Loan PartiesDocuments or the Transactions, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case all in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;its counsel.
(viiie) The Administrative Agent shall have received a certificate of a Responsible certificate, dated the Closing Date and signed by the Chief Executive Officer of the Company, the President of the Company either or a Financial Officer of the Company, confirming that:
(Ai) attaching on the Closing Date, both before and after giving effect to the Credit Extensions and the other Transactions occurring on such date, no Default or Event of Default shall have occurred and be continuing; and
(ii) the representations and warranties contained in Article V of this Agreement (including, without limitation, the representation and warranty set forth in Section 5.04(b)) shall be true in all material respects on and as of the date of such Borrowing except for changes expressly permitted herein and except to the extent that such representations and warranties relate solely to an earlier date (in which event such representations and warranties shall have been true in all material respects on and as of such earlier date).
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (i) any fees payable under this Agreement or the Fee Letter, and (ii) to the extent invoiced, reimbursement or payment of all out‑of‑pocket expenses required to be reimbursed or paid by the Company hereunder.
(g) The Administrative Agent shall have received certified copies of all consents, licenses approvals, authorizations, registrations, filings and approvals orders required to be made or obtained by any Governmental Authority or any other Person all Borrowers and all Guarantors in connection with the execution, delivery and performance financings evidenced by each Loan Party this Agreement and the validity against such Loan Party of the Loan Documents to which it is a partyother Transactions, and all such consents, licenses approvals, authorizations, registrations, filings and approvals orders shall be in full force and effecteffect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority in respect of such financings or other Transactions shall be ongoing.
(h) Since May 31, 2014, there shall have occurred no events, acts, conditions or occurrences of whatever nature, singly or in the aggregate, that have had, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;.
(xi) executed counterparts No actions, suits or other legal proceedings shall be pending or, to the knowledge of the Post-Closing Agreement;
(xi) executed counterparts Company, threatened, against or affecting the Borrowers or the Guarantors and seeking to enjoin, restrain, or otherwise challenge or contest the validity of the financings evidenced by each Lender to this Agreement as of or the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory other Transactions. The Company shall have delivered or otherwise made available to the Administrative Agent that no default or event and the Lenders the consolidated financial statements for the Company and its Subsidiaries for the Fiscal Year ended May 31, 2014, including balance sheet and income and cash flow statements, audited by independent public accountants of default under recognized national standing and prepared in conformity with GAAP, and the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief consolidated financial officer statements of the Company certifying thatand its Subsidiaries for the Fiscal Quarter and year‑to‑date period ended February 28, after giving effect 2015, and such other financial information as the Administrative Agent or the Required Lenders may have reasonably requested.
(j) The Company shall have duly completed and submitted to this Agreement the Administrative Agent a Loan Notice for funding of its Loans, and the Credit Extensions made or continued on the Closing DateAdministrative Agent shall have received, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days not less than three Business Days prior to the Closing Date, the Borrowers a fully‑executed Funding Indemnity Letter.
(k) The Administrative Agent shall have provided to such Lender received evidence that (i) the documentation 2014 Credit Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date and (ii) the 2014 Term Loan Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date.
(l) The Administrative Agent shall have received all other documents, certificates, and other information so requested as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in connection with applicable “know your customer” and anti-money-laundering rules and regulationsthis Section 4.01, including each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Act, in each case at least five days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date; andDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxxmxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(C) (i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Jxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders The Administrative Agent (or by the Administrative Agent with respect to items specified in clause its counsel) shall have received from each party hereto either (vii) below with respect to which the Borrowers have given assurances a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall be delivered promptly following have received (i) from each Borrower, a Note for each Lender as has been requested by such Lender, (ii) from the Guarantors, the Subsidiary Guaranty signed by all such parties and (iii) from the Company, the Company Guaranty signed by the Company.
(c) The Administrative Agent shall have received the favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation covering such other matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with or the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, Transactions as the case may be, under all insurance policies maintained with respect Required Lenders shall reasonably request. The Borrowers hereby request such counsel to the assets and properties of the Loan Parties that constitute Collateral;deliver such opinions.
(ivd) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to The Administrative Agent shall have received such documents and certificates as the Administrative Agent or the Collateral Agent, or as otherwise its counsel may reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts request relating to the applicable Mortgage together with:
(A) to organization, existence and good standing of each Credit Party, the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage authorization of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Transactions to which such Loan Credit Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed any other legal matters relating to the Administrative AgentCredit Parties, Collateral Agent and each Lenderthis Agreement, of Xxxxx Day, counsel for the Borrowers and the Loan PartiesDocuments or the Transactions, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case all in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;its counsel.
(viiie) The Administrative Agent shall have received a certificate of a Responsible Officer certificate, dated the Closing Date and signed by the President of the Company either (A) attaching copies of all consentsor a Financial Officer, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);confirming that:
(ixi) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent both before and (B) each Guarantor, together with after giving effect to the Credit Extensions and the other Loan PartiesTransactions occurring on such date, is Solvent;no Default or Event of Default shall have occurred and be continuing; and
(xiiiii) the representations and warranties contained in Article V of this Agreement (Aincluding, without limitation, the representation and warranty set forth in Section 5.04(b)) upon shall be true in all material respects on and as of the reasonable request date of any Lender made at least five days such Borrowing except for changes expressly permitted herein and except to the extent that such representations and warranties relate solely to an earlier date (in which event such representations and warranties shall have been true in all material respects on and as of such earlier date).
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (i) any fees payable under this Agreement or the Borrowers shall have provided to such Lender the documentation Fee Letter, and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior (ii) to the Closing Date; andextent invoiced, reimbursement or payment of all out‑of‑pocket expenses required to be reimbursed or paid by the Company hereunder.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to immaterial matters or items specified in clause (viiv) below with respect to which the Borrowers have Borrower has given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (or, in the case of the opinion of counsel, by such counsel), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateDate acceptable to the Administrative Agent) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent Lenders and each of the Lenderstheir respective legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) (A) if requested by a Revolving Credit Lender, a Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit such Lender, such Note and (B) a Term Note executed by the Borrowers to be in favor of each Term Lender requesting a Term Notean original face amount equal to such Lender's Commitment;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of respecting resolutions or other actionactions, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent or any Lender may require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(viiv) such documents and certifications evidence as the Administrative Agent and/or any Lender may reasonably require to evidence verify that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of each Loan Party's Organization Documents, certificates of good standing and qualification to engage in business and tax clearance certificates; provided that, to the jurisdiction extent that any of its organization or formationthe tax clearance certificates required under this sub-paragraph (iv) have not been received by the Borrower prior to June 27, 2003, the Borrower shall only be required to deliver such tax clearance certificates in accordance with Section 6.14;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ixv) a certificate signed by a Responsible Officer of each the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to havesatisfied, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this This Agreement as an amendment shall not become effective, and restatement of the Existing Credit Agreement and the obligation of the L/C no Lender or Issuer and each Lender shall be required to make its the initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of unless and until the following conditions precedent:
(a) Unless waived by Agent shall have received all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, and in the Collateral case of documents, in the number of originals requested by the Agent (except that only one original of each requested Note shall be signed):
(a) This Agreement executed by each party thereto.
(b) The Security Agreement duly executed by the Borrower and each of Guarantor (as amended, the Lenders“Security Agreement”), together with:
(i) executed counterparts UCC-1 Financing Statements in form appropriate for filing under the UCC of this Agreement and all jurisdictions in which any Loan Party is organized in form satisfactory to the GuarantyAgent;
(ii) (A) a Revolving Credit Note executed by copies of UCC, tax and judgment lien searches, or equivalent reports in such jurisdictions as the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;Agent may reasonably request; and
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property Perfection Certificate (as defined in the Security Agreement) listed on Schedule 9(e) ), duly executed by each of the Loan Parties.
(c) A Patent Security Agreement, Qualifying Control Agreements Agreement and Trademark Security Agreement (as each such term is defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained Agreement and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to applicable), duly executed by each applicable Loan Party in appropriate form for filing with the Administrative Agent or the Collateral AgentUnited States Patent & Trademark Office, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agentapplicable (each, executed counterparts to the applicable Mortgage together with:an “Intellectual Property Security Agreement”).
(Ad) to A copy of the extent necessary under applicable Lawaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of each of the fiscal years ending December 31, 2015 and December 31, 2016 and the related consolidated statements of income, shareholders’ equity and cash flows for filing in the appropriate county land office(s)such year, Uniform Commercial Code financing statements covering fixtures, if required, setting forth in each case appropriately completed;in comparative form the figures for the previous fiscal year, and accompanied by the report of PricewaterhouseCoopers LLP or another nationally-recognized independent public accounting firm.
(Be) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such Such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;.
(vif) such Such documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage (or similar status) in business in the its jurisdiction of its organization or formation;organization.
(viig) a customary opinionA favorable opinion of Xxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, Collateral Agent and each Lenderthe Lenders, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory as to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;set forth in Exhibit G.
(viiih) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a A certificate signed by a Responsible Officer of each the Borrower certifying (A) that the conditions specified in Sections 4.02(a5.02(b) and (bc) have been satisfied and (B) that other than changes or effects since December 31, 2016 in connection with specific events (and not general economic or industry conditions) applicable specifically to the Borrower and/or its Subsidiaries as previously disclosed in the Borrower’s SEC filings (Form 10-K and 8-K) since December 31, 2016 (but, for the avoidance of doubt, not excluding any changes or effects subsequent to such disclosure or the subsequent worsening of any condition beyond what was described in such SEC filings), there has been no event change, occurrence or circumstance development since the date of the Audited Financial Statements of the Borrower and its Subsidiaries, that has had or could be reasonably expected to have, either individually or in the aggregate, could reasonably be expected to have a “Material Adverse Effect;
” (x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders both before and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued Transaction) on the Closing DateBorrower and its Subsidiaries, taken as a whole.
(Ai) each BorrowerA certificate attesting to the Solvency of the Loan Parties, individuallytaken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, substantially in the form of Exhibit H.
(j) Evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is Solvent and (B) each Guarantorin effect, together with the other certificates of insurance, naming the Agent, on behalf of the Secured Creditors, as an additional insured or loss payee, as the case may be, under all insurance policies (including any flood insurance policies) maintained with respect to the assets and properties of the Loan Parties, is Solvent;Parties that constitutes Collateral.
(xiiik) Evidence reasonably satisfactory to the Agent that each of the Existing Credit Agreements has been, or concurrently with the Effective Date is being, terminated (A) upon subject to the reasonable request survival of any provisions thereof that expressly survive such termination) and all guarantees and Liens securing obligations under each of the Existing Credit Agreements have been, or concurrently with the Effective Date are being, released. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender made at least five days that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender unless the Agent and the Borrower shall have received notice from such Lender prior to the Closing proposed Effective Date specifying its objection thereto. The Agent shall promptly notify the Borrower and the Lenders of the occurrence of the Effective Date, the Borrowers which notice shall have provided to such Lender the documentation be conclusive and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andbinding.
Appears in 1 contract
Samples: Credit Agreement (Hanger, Inc.)
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxxmxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Jxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viii) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this This Agreement as an amendment shall not become effective, and restatement of the Existing Credit Agreement and the obligation of the L/C Issuer and each no Lender shall be required to make its the initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are subject to satisfaction of unless and until the following conditions precedent:
(a) Unless waived by all Agent and the Lenders (or by the Administrative Agent with respect to items specified in clause (vi) below with respect to which the Borrowers shall have given assurances satisfactory to the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent’s receipt received all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts , and in the case of this Agreement and documents, in the Guaranty;
(ii) (A) a Revolving Credit Note executed number of originals requested by the Borrowers in favor Agent or the Lenders (except that only one original of each Revolving Credit Lender requesting a Revolving Credit requested Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation to the Security Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agentshall be signed):
(Aa) Uniform Commercial Code financing statements (and any amendments This Agreement executed by each party thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;.
(Bb) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance The Guarantee Agreement duly executed by the Company and each Loan Party relating party thereto);.
(vc) such [Reserved].
(d) [Reserved].
(e) Such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent or the Lenders may require reasonably request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;.
(vif) Subject to Schedule 7.04(a), such documents and certifications as the Administrative Agent or the Lenders may reasonably require request to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage (or similar status) in business in the its jurisdiction of its organization or formation;organization.
(viig) a customary opinionA favorable opinion of Xxxxx & Xxxxxxx LLP, counsel to the Loan Parties, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;Lenders.
(viiih) a certificate of a Responsible Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a A certificate signed by a Responsible Officer of each the Borrower certifying that (A) that the conditions specified in Sections 4.02(a5.02(b) and (bc) have been satisfied and (B) that other than in connection with the Refinancing, as disclosed in the Borrower’s SEC filings on Form 8-K on or after February 17, 2015 and/or as otherwise disclosed to the Lenders, there has been no event change, occurrence or circumstance development since the date of the Audited Financial Statements February 17, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, aggregate could reasonably be expected to have a “Material Adverse Effect;
” (x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders both before and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer of the Company certifying that, after giving effect to this Agreement and the Credit Extensions made or continued Transaction) on the Closing DateBorrower and its Subsidiaries, taken as a whole.
(Ai) each Borrower, individually, is Solvent and (B) each Guarantor, together with A certificate attesting to the other Solvency of the Loan Parties, is Solvent;taken as a whole, before and after giving effect to the Transaction, from its Chief Financial Officer, substantially in the form of Exhibit G.
(xiiij) Evidence reasonably satisfactory to the Agent and the Lenders that the Fifth Amendment and Waiver to the Senior Secured Credit Agreement has, or substantially concurrently with the Effective Date will, become effective in accordance with the terms thereof.
(Ak) upon Evidence reasonably satisfactory to the reasonable request Agent and the Lenders that the Refinancing has been, or concurrently with the Effective Date is being, consummated. Without limiting the generality of any the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender made at least five days that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender unless the Agent and the Borrower shall have received notice from such Lender prior to the Closing proposed Effective Date specifying its objection thereto. The Agent shall promptly notify the Borrower and the Lenders of the occurrence of the Effective Date, the Borrowers which notice shall have provided to such Lender the documentation be conclusive and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; andbinding.
Appears in 1 contract
Samples: Credit Agreement (Hanger, Inc.)
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders The Administrative Agent (or by the Administrative Agent with respect to items specified in clause its counsel) shall have received from each party hereto either (vii) below with respect to which the Borrowers have given assurances a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall be delivered promptly following have received (i) from each Borrower, a Note for each Lender as has been requested by such Lender, (ii) from the Guarantors, the Subsidiary Guaranty signed by all such parties and (iii) from the Company, the Company Guaranty signed by the Company.
(c) The Administrative Agent shall have received the favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation covering such other matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security Agreement, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with or the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, Transactions as the case may be, under all insurance policies maintained with respect Required Lenders shall reasonably request. The Borrowers hereby request such counsel to the assets and properties of the Loan Parties that constitute Collateral;deliver such opinions.
(ivd) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to The Administrative Agent shall have received such documents and certificates as the Administrative Agent or the Collateral Agent, or as otherwise its counsel may reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts request relating to the applicable Mortgage together with:
(A) to organization, existence and good standing of each Credit Party, the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage authorization of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Transactions to which such Loan Credit Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed any other legal matters relating to the Administrative AgentCredit Parties, Collateral Agent and each Lenderthis Agreement, of Xxxxx Day, counsel for the Borrowers and the Loan PartiesDocuments or the Transactions, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case all in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;its counsel.
(viiie) The Administrative Agent shall have received a certificate of a Responsible certificate, dated the Closing Date and signed by the Chief Executive Officer of the Company, the President of the Company either or a Financial Officer of the Company, confirming that:
(Ai) attaching on the Closing Date, both before and after giving effect to the Credit Extensions and the other Transactions occurring on such date, no Default or Event of Default shall have occurred and be continuing; and
(ii) the representations and warranties contained in Article V of this Agreement (including, without limitation, the representation and warranty set forth in Section 5.04(b)) shall be true in all material respects on and as of the date of such Borrowing except for changes expressly permitted herein and except to the extent that such representations and warranties relate solely to an earlier date (in which event such representations and warranties shall have been true in all material respects on and as of such earlier date).
(f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (i) any fees payable under this Agreement or the Fee Letter, and (ii) to the extent invoiced, reimbursement or payment of all out‑of‑pocket expenses required to be reimbursed or paid by the Company hereunder.
(g) The Administrative Agent shall have received certified copies of all consents, licenses approvals, authorizations, registrations, filings and approvals orders required to be made or obtained by any Governmental Authority or any other Person all Borrowers and all Guarantors in connection with the execution, delivery and performance financings evidenced by each Loan Party this Agreement and the validity against such Loan Party of the Loan Documents to which it is a partyother Transactions, and all such consents, licenses approvals, authorizations, registrations, filings and approvals orders shall be in full force and effecteffect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority in respect of such financings or other Transactions shall be ongoing.
(h) Since May 31, 2014, there shall have occurred no events, acts, conditions or occurrences of whatever nature, singly or in the aggregate, that have had, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;.
(xi) executed counterparts No actions, suits or other legal proceedings shall be pending or, to the knowledge of the Post-Closing Agreement;
(xi) executed counterparts Company, threatened, against or affecting the Borrowers or the Guarantors and seeking to enjoin, restrain, or otherwise challenge or contest the validity of the financings evidenced by each Lender to this Agreement as of or the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory other Transactions. The Company shall have delivered or otherwise made available to the Administrative Agent that no default or event and the Lenders the consolidated financial statements for the Company and its Subsidiaries for the Fiscal Year ended May 31, 2014, including balance sheet and income and cash flow statements, audited by independent public accountants of default under recognized national standing and prepared in conformity with GAAP, and the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief consolidated financial officer statements of the Company certifying thatand its Subsidiaries for the Fiscal Quarter and year‑to‑date period ended February 28, after giving effect 2015, and such other financial information as the Administrative Agent or the Required Lenders may have reasonably requested.
(j) The Company shall have duly completed and submitted to this Agreement the Administrative Agent a Loan Notice for funding of its Loans, and the Credit Extensions made or continued on the Closing DateAdministrative Agent shall have received, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days not less than three Business Days prior to the Closing Date, the Borrowers a fully‑executed Funding Indemnity Letter.
(k) The Administrative Agent shall have provided received evidence that (i) the 2014 Credit Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date and (ii) the 2014 Term Loan Agreement shall have been amended and restated concurrently with the Closing Date and all indebtedness thereunder shall have been repaid concurrently with the Closing Date.
(l) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents (and each Lender that has signed this Agreement shall be deemed to have represented that the requirements of this clause (l) have been met with respect to such Lender the documentation Lender).
(m) The Administrative Agent shall have received all other documents, certificates, and other information so requested as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in connection with applicable “know your customer” and anti-money-laundering rules and regulationsthis Section 4.01, including each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Act, in each case at least five days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date; andDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness and Initial Credit Extension. The effectiveness of this Agreement as an amendment and restatement occurrence of the Existing Credit Agreement Closing Date and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder or to continue its Credit Extensions hereunder, as applicable, are on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all the Lenders : The Administrative Agent (or by its counsel) shall have received from the Administrative Agent with respect to items specified Credit Parties and, in clause the case of this Agreement, each Lender, either (vii) below with respect to which a counterpart of this Agreement and the Borrowers have given assurances Security Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such items party has signed a counterpart of this Agreement and the Security Agreement. The Administrative Agent (or its counsel) shall be delivered promptly following have received from each Borrower, a Note for each Lender as has been requested by such Lender. The Administrative Agent shall have received the satisfactory written opinions from the Company’s counsel (addressed to the Administrative Agent and the Lenders and dated the Closing Date), the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by in a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, and covering such other matters relating to the Collateral Credit Parties, this Agreement, the Loan Documents or the Transactions as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions. The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Credit Party, the authorization of the Lenders:
(i) executed counterparts of this Agreement Transactions to which such Credit Party is a party, and the Guaranty;
(ii) (A) a Revolving Credit Note executed by the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note and (B) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) executed counterparts of an affirmation any other legal matters relating to the Security Credit Parties, this Agreement, Pledge Agreement and the Aircraft Security AgreementLoan Documents or the Transactions, together with (in each case, as applicable, to the extent not on file with the Collateral Agent):
(A) Uniform Commercial Code financing statements (and any amendments thereto, as applicable) suitable all in form and substance for filing in all places required by applicable Law to perfect the Liens of the Collateral Agent under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be reasonably necessary under applicable Law to perfect the Liens of the Collateral Agent under such Security Instruments as a first priority Lien in and to such other Collateral as the Collateral Agent may require, including without limitation the delivery by any Borrower or any other Loan Party of all certificates evidencing pledged interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto;
(B) the originals of all promissory notes issued in connection with Indebtedness permitted by Section 7.03(e), together with duly executed undated endorsements in blank affixed thereto;
(C) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Investment Property (as defined in the Security Agreement) listed on Schedule 9(e) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable securities intermediary;
(D) except with the express prior written consent of the Collateral Agent in each instance, with respect to the Deposit Accounts (as defined in the Security Agreement) listed on Schedule 9(f) of the Security Agreement, Qualifying Control Agreements (as defined in the Security Agreement) from the applicable depositary institutions; and
(E) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;
(iv) in connection with the Mortgages with respect to each Mortgaged Property listed on Exhibit I, to the extent not previously delivered to the Administrative Agent or the Collateral Agent, or as otherwise reasonably requested by the Administrative Agent or the Collateral Agent, executed counterparts to the applicable Mortgage together with:
(A) to the extent necessary under applicable Law, for filing in the appropriate county land office(s), Uniform Commercial Code financing statements covering fixtures, if required, in each case appropriately completed;
(B) mortgage policies of title insurance (which, if satisfactory to the Collateral Agent, may be in the form of a xxxx-up of pro forma mortgage policies which are satisfactory to the Collateral Agent subsequently to be followed by mortgage policies) relating to each Mortgage of the Mortgaged Property referred to above, issued by a title insurer reasonably satisfactory to the Collateral Agent (the “Title Company”), in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on each such Mortgaged Property is a valid and enforceable first priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Liens permitted by Section 7.01, with each such mortgage policy (i) to be in form and substance satisfactory to the Collateral Agent, (ii) to include a reference to the relevant survey with no survey exceptions except those theretofore approved by the Collateral Agent (such approval not to be unreasonably withheld or delayed), (iii) not to include any exception(s) for mechanic’s liens, and (iv) to provide for affirmative insurance and endorsements (to the extent applicable and available in the relevant jurisdiction) as the Collateral Agent may reasonably request;
(i) surveys for each Mortgaged Property sufficient for the Title Company to remove the standard survey exceptions from the title insurance policies and issue the endorsements required in clause (B)(iv) above, or (ii) affidavits delivered to the title insurer sufficient for the Title Company to remove the standard survey exceptions from the title policies and issue the endorsements referenced in clause (B)(iv) above;
(D) evidence (which may be satisfied by appropriate instructions in the funds flow memorandum) of payment to the title insurer of all expenses and premiums of the title insurer in connection with the issuance of such policies and endorsements and payment to the Title Company of an amount equal to any fees or taxes, including recording, mortgage, intangible and stamp taxes payable in connection with recording the Mortgages and Uniform Commercial Code financing statements covering fixtures, if applicable, in the appropriate county or state land office(s);
(E) in connection with any Mortgage and as reasonably requested by the Administrative Agent or the Collateral Agent, customary opinions of counsel in the jurisdiction where each such Mortgaged Property is located; and
(F) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto);
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates (including specimen signatures) of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization or formation;
(vii) a customary opinion, addressed to the Administrative Agent, Collateral Agent and each Lender, of Xxxxx Day, counsel for the Borrowers and the Loan Parties, and the general counsel or assistant general counsel for the Borrowers and the Loan Parties, in each case in form and substance satisfactory to the Administrative Agent concerning the Loan Parties and the Loan Documents its counsel. The Administrative Agent shall have received (which may include some or all of the Mortgages) and as to such matters and jurisdictions as the Administrative Agent, Collateral Agent may reasonably request;
(viiii) a certificate of Solvency Certificate and (ii) a Responsible certificate, dated the Closing Date and signed by the Chief Executive Officer of the Company either (A) attaching copies of all consents, licenses and approvals required by any Governmental Authority or any other Person in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required (except for (x) the consents, licenses and approvals which have been duly obtained, taken, given or made and (y) the filing of Uniform Commercial Code financing statements and the recording of Mortgages pursuant to the Loan Documents);
(ix) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) executed counterparts of the Post-Closing Agreement;
(xi) executed counterparts by each Lender to this Agreement as of the Closing Date of a joinder to the Permitted Notes Intercreditor Agreement in accordance with Section 22 thereof, sufficient in number for distribution to the Administrative AgentCompany, the Collateral Agent, the Permitted Noteholders and the Borrowers, and evidence satisfactory to the Administrative Agent that no default or event of default under the Permitted Notes Documents exists, or would result from the effectiveness of this Agreement or any Credit Extension hereunder or from the application of the proceeds thereof on the Closing Date;
(xii) a certificate signed by the chief financial officer President of the Company certifying or an Authorized Officer of the Company, confirming that, after giving effect to this Agreement and the Credit Extensions made or continued on the Closing Date, (A) each Borrower, individually, is Solvent and (B) each Guarantor, together with the other Loan Parties, is Solvent;
(xiii) (A) upon the reasonable request of any Lender made at least five days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the Closing Date; and:
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
