Conditions to Initial Extensions of Credit. The obligation of the Lenders to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to the satisfaction of such of the following conditions in all material respects on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders: (a) the Administrative Agent shall have received multiple counterparts hereof signed by each of the parties hereto; (b) the Administrative Agent shall have received a duly executed Note for the account of each Lender that requests a Note; (c) the Administrative Agent and each Lender shall have received legal opinions of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent and the Lenders; (d) the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as of a recent date by the Secretary of State of the state of formation of the Borrower; (e) the Administrative Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (f) the Administrative Agent shall have received a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Credit; (g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower and (B) all corporate or other necessary action taken by the Borrower to authorize the execution, delivery and performance of the Credit Documents to which it is a party; (h) the Administrative Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing; (i) the Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel); (j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower; (k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019; (l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing; (m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; (n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and (p) In the good faith, reasonable judgment of the Administrative Agent: (i) since December 31, 2018, there shall not have occurred a material adverse change in the condition (financial or otherwise), operations, business, assets, liabilities or prospects of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches; (ii) no action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019; (iii) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound; (iv) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and (v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit Documents.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation of the Lenders (including the Swingline Lender) to close this Credit Agreement make the initial Loans (including the initial advances on the Tranche A Term Loan and make the funding of the Tranche B Term Loan) or of the Issuing Lender to issue the initial Extensions Letter of Credit hereunder is on the Effective Date, whichever shall occur first shall be subject to the satisfaction of such of the following conditions in all material respects on or prior before the Effective Date in addition to satisfaction on the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item of the conditions set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders:Section 5.1;
(a) the Administrative The Agent shall have received multiple counterparts hereof signed by each satisfactory evidence that the Agent, on behalf of the parties heretoLenders, holds a perfected, first priority Lien, subject to no other Liens other than for Permitted Liens, on all Collateral;
(b) the Administrative The Agent shall have received a duly executed Note for satisfactory evidence that the account of each Lender that requests a NoteExisting Credit Agreement, together with all interest, prepayment premiums and other amounts due and payable, has been paid in full and the related commitments terminated;
(c) the Administrative Agent and each Lender shall have received legal opinions of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent and the Lenders;
(d) the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as of a recent date by the Secretary of State of the state of formation of the Borrower;
(e) the Administrative The Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date executed by the Secretary of State of the state of formation chief financial officer or treasurer of the Borrower and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary the Effective Date stating that immediately after giving effect to this Credit Agreement and the other Credit Documents and the initial extensions of State credit hereunder on the Effective Date, (and any state department of taxation, as applicablei) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(f) the Administrative Agent shall have received a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Credit Documents to which the Borrower Parties is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Credit;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower and (B) all corporate or other necessary action taken by the Borrower to authorize the executionSolvent, delivery and performance of the Credit Documents to which it is a party;
(h) the Administrative Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred exists and is continuing(iii) the representations and warranties set forth in Section 6 are true and correct in all material respects;
(id) the Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative The Agent shall have received such other documents, agreements and instruments as or information which may be reasonably requested by the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(pe) In The Agent shall have received, for its own account and for the good faith, reasonable judgment accounts of the Administrative Agent:
(i) since December 31Lenders, 2018, there shall not have occurred a material adverse change in the condition (financial all fees and expenses required by this Credit Agreement or otherwise), operations, business, assets, liabilities or prospects of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented any other Credit Document to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no action, suit, investigation or proceeding pending or threatened in any court be paid on or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit DocumentsEffective Date.
Appears in 1 contract
Samples: Credit Agreement (Genicom Corp)
Conditions to Initial Extensions of Credit. The obligation of the Lenders to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to the satisfaction of such of the following conditions in all material respects on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders9.05:
(a) the The Administrative Agent shall have received multiple counterparts hereof signed by each of the parties hereto;
(b) the The Administrative Agent shall have received a duly executed Revolving Note for the account of each Lender that requests a NoteLender, complying with Section 2.13;
(c) the The Administrative Agent and each Lender shall have received legal opinions of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent and the Lenders;
(d) The Administrative Agent shall have received all documents it may reasonably request relating to the existence of the Borrower, the corporate authority for and the validity of each of the Credit Documents, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent;
(e) The Administrative Agent shall have received the certificate or articles applicable Loan Notice relating to such Extension of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as of a recent date by the Secretary of State of the state of formation of the Borrower;
(e) the Administrative Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectCredit;
(f) the Administrative Agent No Default shall have received a certificate occurred and be continuing immediately before the making of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) such Extension of the Borrower with respect to each of the officers of the Borrower authorized to execute Credit and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Creditno Default shall exist immediately thereafter;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) The representations and warranties of the Borrower of (A) the by-laws of the Borrower and (B) all corporate made in or other necessary action taken by the Borrower pursuant to authorize the execution, delivery and performance of the Credit Documents to which it is a partyparty shall be true in all material respects as of the date of the making of such Extension of Credit;
(h) the The Extension of Credit will be extended in compliance with all applicable governmental laws and regulations (including without limitation Regulations U, T and X);
(i) The Administrative Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s 's chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) no Default is continuing, (ii) the representations Borrower is Solvent, (iii), no other Funded Debt shall be benefited by any Support Obligations given by Subsidiaries of the Borrower, and warranties in Article V hereof are true and correct all other conditions precedent to the initial borrowing hereunder have been satisfied in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(ij) the The Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrowerherewith;
(k) No litigation shall be pending or to the knowledge of Borrower threatened against the Borrower, any Subsidiary or any Specified Affiliate which would be likely to have a Material Adverse Effect;
(l) The Administrative Agent and the Lenders shall have received (i) the such financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(l) information regarding the Borrower or any Subsidiary that qualifies and its Subsidiaries as a “legal entity customer” under the Beneficial Ownership Regulation shallmay be requested by, collectivelyand in each case in form and substance satisfactory to, have delivered to the Administrative Agent, Agent and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closingLenders;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) the The Administrative Agent shall have received evidence that the Existing Credit Agreement has been (or concurrently with the Closing Date is being) terminated and reviewed, Liens securing obligations under the Existing Credit Agreement have been (or concurrently with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (oClosing Date are being) the Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably requestreleased; and
(pn) In the good faith, reasonable judgment of the Administrative Agent:
(i) since Since December 31, 20182002, there shall not have occurred a material adverse change in has been no event or circumstance with respect to the condition (financial or otherwise), operations, business, assets, liabilities business or prospects assets of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made taken as a whole that has had or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially have a Material Adverse Effect. The certificates and adversely affect opinions referred to in this Section shall be dated not earlier than the transactions contemplated by date hereof and not later than the Credit Documentsdate of such initial Extensions of Credit.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation of the Lenders to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to the satisfaction of such of the following conditions in all material respects on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(a) the The Administrative Agent shall have received multiple counterparts hereof signed by each of the parties hereto;
(b) the The Administrative Agent shall have received a duly executed Note for the account of each Lender that requests a Note;
(c) the The Administrative Agent and each Lender shall have received legal opinions of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent and the Lenders;
(d) The Administrative Agent shall have received all documents it may reasonably request relating to the existence of the Borrower, the corporate authority for and the validity of each of the Credit Documents, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent;
(e) The Administrative Agent shall have received the certificate or articles applicable Loan Notice relating to such Extension of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as of a recent date by the Secretary of State of the state of formation of the Borrower;
(e) the Administrative Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectCredit;
(f) the Administrative Agent No Default shall have received a certificate occurred and be continuing immediately before the making of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) such Extension of the Borrower with respect to each of the officers of the Borrower authorized to execute Credit and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Creditno Default shall exist immediately thereafter;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) The representations and warranties of the Borrower of (A) the by-laws of the Borrower and (B) all corporate made in or other necessary action taken by the Borrower pursuant to authorize the execution, delivery and performance of the Credit Documents to which it is a partyparty shall be true in all material respects as of the date of the making of such Extension of Credit;
(h) the The Administrative Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;.
(i) the The Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) . The certificates and opinions referred to in this Section shall be dated not earlier than the date hereof and not later than the date of such initial Extensions of Credit. Without limiting the generality of the provisions of the last paragraph of Section 8.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Credit 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 a Disbursement Instruction Agreement executed by the Borrower;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any notice from such Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and proposed Closing Date specifying its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(p) In the good faith, reasonable judgment of the Administrative Agent:
(i) since December 31, 2018, there shall not have occurred a material adverse change in the condition (financial or otherwise), operations, business, assets, liabilities or prospects of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit Documentsobjection thereto.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation of the Lenders Banks to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to the satisfaction of such of the following conditions in all material respects on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders9.05:
(a) the Administrative The Agent shall have received multiple counterparts hereof signed by each of the parties heretohereto (or, in the case of any party (other than the Borrower) as to which an executed counterpart shall not have been received, receipt by the Agent in form satisfactory to it of telegraphic, facsimile, telex or other written confirmation from such party of execution of a counterpart hereof by such party); provided, however, in any event, the Agent shall distribute to each Bank promptly after the Closing Date an original Credit Agreement executed by the Borrower, the Banks and the Agent;
(b) the Administrative The Agent shall have received a duly executed Revolving Note for the account of each Lender that requests a NoteBank, complying with Section 2.03;
(c) The Agent shall have received the Administrative duly executed Subsidiaries Guarantees;
(d) The Agent and each Lender Bank shall have received legal opinions of counsel to the BorrowerBorrower and the other Obligors, in form and substance satisfactory to the Administrative Agent and the Lenders;
(d) the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as of a recent date by the Secretary of State of the state of formation of the BorrowerBanks;
(e) the Administrative The Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect all documents it may reasonably request relating to the Borrower issued as of a recent date by the Secretary of State of the state of formation existence of the Borrower and certificates each Obligor, the corporate authority for and the validity of qualification to transact business or other comparable certificates issued as each of a recent date by each Secretary of State (the Financing Documents, and any state department of taxationother matters relevant hereto, as applicable) of each state all in which form and substance satisfactory to the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectAgent;
(f) the Administrative The Agent shall have received a certificate receive the applicable Notice of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect Borrowing relating to each of the officers of the Borrower authorized to execute and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions such Extension of Credit;
(g) the Administrative Agent No Default shall have received copies certified by occurred and be continuing immediately before the Secretary or Assistant Secretary making of such Extension of Credit and no Default shall exist immediately thereafter;
(or other individual performing similar functionsh) of the Borrower of (A) the by-laws The representations and warranties of the Borrower and (B) all corporate the Obligors made in or other necessary action taken by pursuant to the Borrower to authorize the execution, delivery and performance of the Credit Financing Documents to which it is a partyparty shall be true in all material respects as of the date of the making of such Extensions of Credit;
(hi) the Administrative The Extension of Credit will be extended in compliance with all applicable governmental laws and regulations (including without limitation Regulations U, T and X);
(j) The Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s 's chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) no Default is continuing, the representations Borrower is Solvent and warranties in Article V hereof are true and correct all other conditions precedent to the initial borrowing hereunder have been satisfied in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(ik) the Administrative The Agent and the Lenders Banks shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(bpursuant to Sections 2.15(b) and (iid) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019hereof;
(l) No litigation shall be pending or to the knowledge of Borrower threatened against the Borrower, any Material Subsidiary or any Specified Affiliate which would be likely to materially and adversely affect the assets, operations, business or condition, financial or otherwise, of the Borrower, any Material Subsidiary or any Specified Affiliate, or which could reasonably be expected to affect materially and adversely the ability of the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closingfulfill its obligations hereunder;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(p) In the good faith, reasonable judgment of the Administrative Agent:
(i) since December 31, 2018, there There shall not have occurred a or become known any material adverse change in with respect to the condition (financial or otherwise), operations, business, assets, liabilities business or prospects assets of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower and its Subsidiaries (including CCT and its Subsidiaries) taken as a whole, since December 31, 1997;
(n) The Agent shall have received all approvalsa certified copy of the definitive Agreement and Plan of Merger dated as of June 8, consents 1998, among the Borrower, HR Acquisition I Corporation and waiversCapstone Capital Corporation, including exhibits, schedules, amendments and modifications thereto, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is boundrelated documentation;
(ivo) The acquisition of CCT shall have been consummated in accordance with the foregoing Agreement and Plan of Merger and all applicable laws, and all waiting periods required by any Governmental Authority applicable to the Borrower and each other Credit Party with respect to such acquisition shall have provided all information requested by lapsed without objection;
(p) within three (3) Business Days following the Administrative Closing Date, a preliminary pro forma balance sheet, together with a statement of sources and uses of funds in connection with the acquisition of CCT and the initial Extensions of Credit hereunder, in form and detail satisfactory to the Agent and each Lender in order (subject to comply with applicable “know your customer” and anti-money laundering rules and regulationsfinal adjustments, including without limitation, the Patriot Act; andreallocation of purchase consideration);
(vq) there confirmation of the execution and effectiveness of the Term Loan Agreement and the other credit documents relating thereto; The certificates and opinions referred to in this Section shall be dated not have occurred or exist any other material disruption earlier than the date hereof and not later than the date of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit Documentssuch initial Extensions of Credit.
Appears in 1 contract
Samples: Revolving Credit Agreement (Healthcare Realty Trust Inc)
Conditions to Initial Extensions of Credit. The obligation of the Lenders Banks to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to the satisfaction of such of the following conditions in all material respects on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders9.05:
(a) the Administrative The Agent shall have received multiple counterparts hereof signed by each of the parties hereto;
(b) the Administrative The Agent shall have received a duly executed Revolving Note for the account of each Lender that requests a NoteBank, complying with Section 2.03;
(c) the Administrative The Agent and each Lender Bank shall have received legal opinions of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent and the LendersBanks;
(d) The Agent shall have received all documents it may reasonably request relating to the Administrative existence of the Borrower, the corporate authority for and the validity of each of the Financing Documents, and any other matters relevant hereto, all in form and substance satisfactory to the Agent;
(e) The Agent shall have received the certificate or articles applicable Notice of incorporation or formation, articles Borrowing relating to such Extension of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as of a recent date by the Secretary of State of the state of formation of the Borrower;
(e) the Administrative Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectCredit;
(f) the Administrative Agent No Default shall have received a certificate occurred and be continuing immediately before the making of incumbency signed by the Secretary or Assistant Secretary such Extension of Credit and no Default shall exist immediately thereafter;
(or other individual performing similar functionsg) The representations and warranties of the Borrower with respect made in or pursuant to each of the officers of the Borrower authorized to execute and deliver the Credit Financing Documents to which the Borrower it is a party and authorized to execute and deliver on behalf shall be true in all material respects as of the Borrower Requests for date of the making of such Extensions of Credit;
(gh) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary The Extension of Credit will be extended in compliance with all applicable governmental laws and regulations (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower including without limitation Regulations U, T and (B) all corporate or other necessary action taken by the Borrower to authorize the execution, delivery and performance of the Credit Documents to which it is a partyX);
(hi) the Administrative The Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s 's chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) no Default is continuing, (ii) the representations Borrower is Solvent, (iii) the guaranties given by the Borrower's Subsidiaries to guarantee the $70 million 2000 Private Placement Debt have been released, (iv) other than the subsidiary guaranties given in respect of the $90 million 1995 Private Placement Debt, no other Consolidated Funded Indebtedness shall be benefited by any Guarantee given by Subsidiaries of the Borrower, and warranties in Article V hereof are true and correct all other conditions precedent to the initial borrowing hereunder have been satisfied in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(ij) The Agent shall have received evidence that the Administrative guaranties given by the Borrower's Subsidiaries to guarantee the Existing Credit Facility have been released;
(k) The Agent and the Lenders Banks shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(bpursuant to Sections 2.15(b) and (iid) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019hereof;
(l) No litigation shall be pending or to the knowledge of Borrower threatened against the Borrower, any Subsidiary or any Subsidiary that qualifies as Specified Affiliate which would be likely to have a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closingMaterial Adverse Effect;
(m) The Agent and the Banks shall have received such financial information regarding the Borrower and its Subsidiaries as may be requested by, and in each other Credit Party shall have provided all information requested by case in form and substance satisfactory to, the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;Banks; and
(n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(p) In the good faith, reasonable judgment of the Administrative Agent:
(i) since December 31, 2018, there There shall not have occurred a or become known any material adverse change in with respect to the condition (financial or otherwise), operations, business, assets, liabilities business or prospects assets of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower and its Subsidiaries shall have received all approvalstaken as a whole, consents since December 31, 2000. The certificates and waivers, and shall have made or given all necessary filings and notices as opinions referred to in this Section shall be required to consummate dated not earlier than the transactions contemplated hereby without date hereof and not later than the occurrence date of any default under, conflict with or violation such initial Extensions of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit DocumentsCredit.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation obligations of the Lenders and the Issuing Bank to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to shall not become effective until the satisfaction of such date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2).
(a) The Administrative Agent, the Lenders and the Issuing Bank shall have received all material respects fees and other amounts due and payable on or prior to the Closing Date date of the initial Extension of Credit, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Loan Document and under the Fee Letter.
(b) The Administrative Agent (or its counsel) shall have received the following (each of which, unless otherwise specified, shall be dated on or as shall not have been expressly waived in accordance with Section 9.01, with of a single date occurring on or before the date of the Initial Extension of Credit):
(i) a counterpart of this Agreement signed by or on behalf of each delivery item set forth below in form and substance party hereto or written evidence satisfactory to the Administrative Agent and each (which may include a facsimile transmission of the Lenders:
(aa signed signature page of this Agreement) the Administrative Agent shall have received multiple counterparts hereof that such party has signed by each a counterpart of the parties heretothis Agreement;
(bii) the Administrative Agent shall have received if requested by any Lender, a duly executed Note for the account of each Lender that requests a Notenote payable to such Lender;
(ciii) a certificate of the Administrative Agent and each Lender shall have received legal opinions Secretary of counsel to the Borrower, in form attaching and substance satisfactory certifying copies of its operating agreement and of the resolutions of its boards of directors or members, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the Administrative Agent name, title and true signature of each officer of the LendersBorrower executing the Loan Documents;
(div) the Administrative Agent shall have received certified copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust organization or other comparable organizational instrument (if any) charter documents of the Borrower certified Borrower, together with certificates of good standing or existence, as of a recent date by may be available from the Secretary of State of the state of formation of the Borrower;
(e) the Administrative Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state jurisdiction of formation of the Borrower and certificates of qualification to transact business or each other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which jurisdiction where the Borrower is required to be so qualified and to do business as a foreign corporation except for any such jurisdiction where the failure to be so qualified could reasonably be expected to qualify shall not have a Material Adverse Effect;
(fv) a favorable written opinion of (i) Xxxxxxxx & Xxxxxxxx, or other counsel to the Borrower acceptable to the Administrative Agent shall have received a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Credit;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower and (B) all corporate or other necessary action taken by the Borrower to authorize the execution, delivery and performance of the Credit Documents to which it is a party;
(h) the Administrative Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(i) the Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis in-house counsel for the Borrower’s fiscal quarter ending March 31, 2019;
(l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shallin each case, collectively, have delivered addressed to the Administrative Agent, the Issuing Bank and any Lender requesting each of the sameLenders, one Beneficial Ownership Certification in relation and covering such matters relating to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitationBorrower, the Patriot Act;
(n) Loan Documents and the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments transactions contemplated therein as the Administrative Agent, the Issuing Bank or the Required Lenders shall reasonably request;
(vi) a certificate, dated as of the date hereof, and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 3.2;
(vii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of the Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any Lender through of the Administrative Agenttransactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(viii) copies of the audited consolidated financial statements for the Borrower and its Subsidiaries for the Fiscal Years ending December 31, 2000 and December 31, 2001, including balance sheets, income and cash flow statements audited by independent certified public accountants of recognized national standing and prepared in conformity with GAAP, and such other financial information as the Lenders may reasonably request; and
(pix) In Certification by the good faith, reasonable judgment of the Administrative Agent:
Borrower that its obligations under (i) since December 31the credit agreement, 2018dated as of April 27, there shall not have occurred a material adverse change in the condition (financial or otherwise)2001 with Citibank as administrative agent, operations, business, assets, liabilities or prospects of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no actionthe credit agreement, suitdated as of April 20, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries2001 with SunTrust Bank as administrative agent, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower first amended and its Subsidiaries shall have received all approvalsrestated letter of credit facility agreement, consents and waiversdated as of July 18, 2001, with ABN AMRO Bank N.V. as administrative agent, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the letter agreement, dated March 16, 2001, between the Borrower and Bank One, NA have been paid in full, and that all letters of credit outstanding under each other Credit Party of the foregoing agreements shall have provided all information requested by be terminated on or before the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, date of the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption Initial Extension of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit DocumentsCredit.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation obligations of the Lenders and the Issuing Bank to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to shall not become effective until the satisfaction of such date on which each of the following conditions is satisfied (or waived in accordance with Section 11.2).
(a) The Administrative Agent, the Lenders and the Issuing Bank shall have received all material respects fees and other amounts due and payable on or prior to the Closing Date date of the initial Extension of Credit, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrowers hereunder, under any other Loan Document and under the Fee Letter.
(b) The Administrative Agent (or its counsel) shall have received the following (each of which, unless otherwise specified, shall be dated on or as shall not have been expressly waived in accordance with Section 9.01, with of a single date occurring on or before the date of the Initial Extension of Credit):
(i) a counterpart of this Agreement signed by or on behalf of each delivery item set forth below in form and substance party hereto or written evidence satisfactory to the Administrative Agent and each (which may include a facsimile transmission of the Lenders:
(aa signed signature page of this Agreement) the Administrative Agent shall have received multiple counterparts hereof that such party has signed by each a counterpart of the parties heretothis Agreement;
(bii) the Administrative Agent shall have received if requested by any Lender, a duly executed Note for the account of each Lender that requests a Notenote payable to such Lender;
(ciii) a certificate of the Administrative Agent and Secretary of each Lender shall have received legal opinions of counsel to the Borrower, in form attaching and substance satisfactory certifying copies of its operating agreement or by-laws and of the resolutions of its boards of directors or members, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the Administrative Agent name, title and true signature of each officer of such Borrower executing the LendersLoan Documents;
(div) the Administrative Agent shall have received certified copies of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust organization or other comparable organizational instrument (if any) charter documents of the Borrower certified each Borrower, together with certificates of good standing or existence, as of a recent date by may be available from the Secretary of State of the state jurisdiction of formation of the Borrower;
(e) the Administrative Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the such Borrower and certificates of qualification to transact business or each other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the jurisdiction where such Borrower is required to be so qualified and to do business as a foreign corporation except for any such jurisdiction where the failure to be so qualified could reasonably be expected to qualify shall not have a Material Adverse Effect;
(fv) a written opinion of (i) Xxxxxxxx & Xxxxxxxx, or other counsel to the Borrowers acceptable to the Administrative Agent shall have received a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Credit;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower and (B) all corporate or other necessary action taken by the Borrower to authorize the execution, delivery and performance of the Credit Documents to which it is a party;
(h) the Administrative Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(i) the Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis in-house counsel for the Borrower’s fiscal quarter ending March 31Borrowers, 2019;
(l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shallin each case, collectively, have delivered addressed to the Administrative Agent, the Issuing Bank and any Lender requesting each of the sameLenders, one Beneficial Ownership Certification in relation and covering such matters relating to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitationBorrowers, the Patriot Act;
(n) Loan Documents and the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments transactions contemplated therein as the Administrative Agent, the Issuing Bank or the Required Lenders shall reasonably request;
(vi) a certificate, dated as of the date hereof, and signed by a Responsible Officer of each Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 3.2;
(vii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any Lender through of the Administrative Agenttransactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(viii) copies of the audited consolidated financial statements for AESC and its Subsidiaries for the Fiscal Years ending December 31, 2000 and December 31, 2001, including balance sheets, income and cash flow statements audited by independent certified public accountants of recognized national standing and prepared in conformity with GAAP, and such other financial information as the Lenders may reasonably request; and
(pix) In the good faith, reasonable judgment of the Administrative Agent:
Certification by AESC that its obligations under (i) since December 31the credit agreement, 2018dated as of April 27, there shall not have occurred a material adverse change in the condition (financial or otherwise)2001 with Citibank as administrative agent, operations, business, assets, liabilities or prospects of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no actionthe credit agreement, suitdated as of April 20, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries2001 with SunTrust Bank as administrative agent, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower first amended and its Subsidiaries shall have received all approvalsrestated letter of credit facility agreement, consents and waiversdated as of July 18, 2001, with ABN AMRO Bank N.V. as administrative agent, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the Borrower letter agreement, dated March 16, 2001, between AESC and Bank One, NA have been paid in full, and that all letters of credit outstanding under each other Credit Party of the foregoing agreements shall have provided all information requested by be terminated on or before the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, date of the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption Initial Extension of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit DocumentsCredit.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation of the Lenders Banks to close this Credit Agreement and make initial Extensions of Credit hereunder is subject to the satisfaction of such of the following conditions in all material respects on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders9.05:
(a) the Administrative The Agent shall have received multiple counterparts hereof signed by each of the parties heretohereto (or, in the case of any party (other than the Borrower) as to which an executed counterpart shall not have been received, receipt by the Agent in form satisfactory to it of telegraphic, facsimile, telex or other written confirmation from such party of execution of a counterpart hereof by such party); provided, however, in any event, the Agent shall distribute to each Bank promptly after the Closing Date an original Credit Agreement executed by the Borrowers, the Banks and the Agent;
(b) the Administrative The Agent shall have received a duly executed Term Note for the account of each Lender that requests a NoteBank, complying with Section 2.03;
(c) The Agent shall have received the Administrative duly executed Subsidiaries Guarantees and the Security Agreements;
(d) The Agent and each Lender Bank shall have received legal opinions of counsel to the BorrowerBorrowers and the other Obligors, in form and substance satisfactory to the Administrative Agent and the Lenders;
(d) the Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as of a recent date by the Secretary of State of the state of formation of the BorrowerBanks;
(e) The Agent shall have received all documents it may reasonably request relating to the Administrative existence of the Borrowers and each Obligor, the corporate authority for and the validity of each of the Financing Documents, and any other matters relevant hereto, all in form and substance satisfactory to the Agent;
(f) No Default shall have occurred and be continuing immediately before the making of such Extension of Credit and no Default shall exist immediately thereafter;
(g) The representations and warranties of the Borrowers and the Obligors made in or pursuant to the Financing Documents to which it is a party shall be true in all material respects as of the date of the making of such Extensions of Credit;
(h) The Extension of Credit will be extended in compliance with all applicable governmental laws and regulations (including without limitation Regulations U, T and X);
(i) The Agent shall have received a certificate of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date by the Secretary of State of the state of formation of the Borrower and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(f) the Administrative Agent shall have received a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Credit;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower and (B) all corporate or other necessary action taken by the Borrower to authorize the execution, delivery and performance of the Credit Documents to which it is a party;
(h) the Administrative Agent shall have received a certificate of the BorrowerBorrowers, signed on behalf of each Borrower by the Borrower’s 's chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) no Default is continuing, the representations Borrower is Solvent and warranties in Article V hereof are true and correct all other conditions precedent to the initial borrowing hereunder have been satisfied in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(i) the Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) No litigation shall be pending or to the Administrative Agent shall have received a Disbursement Instruction Agreement executed by knowledge of Borrowers threatened against the BorrowerBorrowers, any Material Subsidiary or any Specified Affiliate which would be likely to materially and adversely affect the assets, operations, business or condition, financial or otherwise, of the Borrowers, any Material Subsidiary or any Specified Affiliate, or which could reasonably be expected to affect materially and adversely the ability of the Borrowers to fulfill their obligations hereunder;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(p) In the good faith, reasonable judgment of the Administrative Agent:
(i) since December 31, 2018, there There shall not have occurred a or become known any material adverse change in with respect to the condition (financial or otherwise), operations, business, assets, liabilities business or prospects assets of the Consolidated Group Borrowers and their Subsidiaries taken as a whole or in the facts and information regarding such entities as represented to datewhole, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notchessince December 31, 1997;
(iil) no actionThe Agent shall have received a certified copy of the definitive Agreement and Plan of Merger dated as of June 8, suit1998, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially among the Borrower, HR Acquisition I Corporation and adversely affect the Borrower or its SubsidiariesCapstone Capital Corporation, or (b) to affect any transaction contemplated herebyincluding exhibits, other than as disclosed to the Administrative Agent schedules, amendments and the Lenders on or prior to April 15modifications thereto, 2019and related documentation;
(iiim) certification that the Borrower conditions to effectiveness of the merger, but for payment of the purchase price, have been satisfied and its Subsidiaries shall have received all approvals, consents evidence that immediately upon funding of the Tranche B Term Loan hereunder the merger will be consummated in accordance with the foregoing Agreement and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence Plan of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is boundMerger;
(ivn) delivery within three (3) Business Days following the Borrower Closing Date, a preliminary pro forma balance sheet, together with a statement of sources and each other uses of funds in connection with the acquisition of CCT and the initial Extensions of Credit Party shall have provided all information requested by hereunder, in form and detail satisfactory to the Administrative Agent and each Lender in order (subject to comply with applicable “know your customer” and anti-money laundering rules and regulationsfinal adjustments, including without limitation, the Patriot Act; andreallocation of purchase consideration);
(vo) there confirmation of the execution and effectiveness of the Revolving Credit Agreement and the other credit documents relating thereto. The certificates and opinions referred to in this Section shall be dated not have occurred or exist any other material disruption earlier than the date hereof and not later than the date of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit Documentssuch initial Extensions of Credit.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation obligations of the Lenders to close this Credit Agreement make the initial Loans hereunder and make initial Extensions of the Issuing Banks to issue Letters of Credit hereunder is hereunder, and the effectiveness of any amendment to a Letter of Credit that increases the principal amount thereof, are subject to the satisfaction of the conditions set forth below (the date of any such satisfaction, the "Effective Date"; which date shall not be later than the date that is 90 days after the Closing Date, or, if earlier, September 30, 1998):
(a) An amended and restated $600 million liquidity facility (the "Liquidity Facility"), together with any necessary changes in the commercial paper program and certificates associated therewith, on behalf of the following conditions in Metris Master Trust shall have become effective.
(b) The Administrative Agent, the Lenders and the arranger of the credit facilities provided for herein shall have received all material respects fees (due and payable pursuant to the Fee Letter) and other amounts due and payable on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01Effective Date, with each delivery item set forth below in form and substance satisfactory including, to the Administrative Agent and each extent invoiced, reimbursement or payment of the Lenders:
(a) the Administrative Agent shall have received multiple counterparts hereof signed all out-of-pocket expenses required to be reimbursed or paid by each of the parties hereto;
(b) the Administrative Agent shall have received a duly executed Note for the account of each Lender that requests a Note;any Loan Party hereunder or under any other Loan Document.
(c) the Administrative Agent and each Lender shall have received legal opinions of counsel to the Borrower, in form and substance satisfactory to the Administrative Agent and the Lenders;
(d) the The Administrative Agent shall have received the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of the Borrower certified as results of a recent date by the Secretary of State search of the state of formation of the Borrower;
(e) the Administrative Agent shall Uniform Commercial Code, judgment and tax lien filings which may have received a certificate of good standing (or certificate of similar meaning) been filed with respect to the Borrower issued as or any other Loan Party, and the results of such search shall be satisfactory to the Lenders.
(d) The Spin-off shall have been consummated, (including receipt of a recent date by favorable ruling from the Secretary of State of Internal Revenue Service stating that the state of formation of Spin-off may be consummated on a tax-free basis) and intercompany arrangements between the Borrower and certificates Fingerhut shall have been completed.
(e) The credit facilities provided for herein shall have received a rating of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (at least BB- and any state department of taxationat least Ba3 from S&P and Moody's, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;respectively.
(f) the The Administrative Agent shall have sxxxx xxve received a certificate of incumbency completed Borrowing Base Certificate dated the Effective Date and signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower with respect to each of the officers of the Borrower authorized to execute and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Credit;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower and (B) all corporate or other necessary action taken by the Borrower to authorize the execution, delivery and performance of the Credit Documents to which it is a party;
(h) the Administrative Agent shall have received a certificate Financial Officer of the Borrower, signed on behalf of Borrower by the Borrower’s chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(i) the Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel);
(j) the Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower;
(k) the Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request; and
(p) In the good faith, reasonable judgment of the Administrative Agent:
(i) since December 31, 2018, there shall not have occurred a material adverse change in the condition (financial or otherwise), operations, business, assets, liabilities or prospects of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit Documents.
Appears in 1 contract
Conditions to Initial Extensions of Credit. The obligation of each Lender to make the Lenders initial Loans, of Administrative Agent to close this Credit Agreement issue any initial Support Agreements and make of any LC Issuer to issue any initial Extensions Lender Letter of Credit hereunder is shall be subject to the receipt by Administrative Agent of each agreement, document and instrument set forth on the closing checklist prepared by Administrative Agent or its counsel, each in form and substance satisfactory to Administrative Agent, and such other deliverables reasonably requested by Administrative Agent and Lenders, and to the satisfaction of such of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders and their respective counsel in their sole discretion:
(a) the payment of all material respects fees, expenses and other amounts due and payable under each Financing Document on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(a) the Administrative Agent shall have received multiple counterparts hereof signed by each of the parties heretoDate;
(b) the Administrative Agent shall have received absence, since November 30, 2006, of any material adverse change in any aspect of the business, operations, properties, prospects or condition (financial or otherwise) of any Credit Party, or any event or condition which could reasonably be expected to result in such a duly executed Note for the account of each Lender that requests a Notematerial adverse change;
(c) all of each Borrower’s existing Debt (other than purchase money Debt and Capital Leases permitted under clause (c) of the definition of Permitted Indebtedness and the Mortgage Debt), including any related party debt, shall be fully subordinated to the Obligations pursuant to Subordination Agreements that are requested by and satisfactory to the Administrative Agent and each Lender in its sole discretion;
(d) the receipt of the initial Borrowing Base Certificate, prepared as of April 30, 2007, on the Closing Date and, thereafter, the receipt of any updated Borrowing Base Certificate or “roll forward” required under this Agreement;
(i) the Bankruptcy Court shall have received legal opinions of counsel entered, prior to the BorrowerClosing Date, an order (the “Confirmation Order”), in form and substance satisfactory to the Administrative Agent Agent, confirming the Reorganization Plan and approving and authorizing the transactions contemplated thereby, and the Lenders;
Confirmation Order shall be a Final Order (dand, for avoidance of doubt, the Confirmation Order shall not have been reversed, stayed, modified, amended, rescinded or vacated); (ii) the Reorganization Plan shall not have been modified, altered, amended or otherwise changed or supplemented without the prior written consent of the Administrative Agent; (iii) all material conditions precedent to the effectiveness of the Reorganization Plan shall have been satisfied (or waived with the prior written consent of the Administrative Agent) and the Effective Date (as defined in the Reorganization Plan) shall have occurred; (iv) unless otherwise agreed by the Administrative Agent, ten (10) days shall have passed since the entry of the Confirmation Order and the Confirmation Order shall not be subject to any stay; (v) the Administrative Agent shall have received be satisfied that, except as otherwise consented to by it, the certificate or articles Bankruptcy Court’s retention of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) jurisdiction under the Confirmation Order will not govern the enforcement of the Borrower certified as of a recent date by Loan Documents; (vi) the Secretary of State transactions set forth in the Reorganization Plan shall have been consummated in accordance with all applicable Law and otherwise to the satisfaction of the state of formation of the Borrower;
Administrative Agent; and (evii) the Administrative Agent shall have received a certificate copy of good standing (or certificate of similar meaning) with respect to the Borrower issued as of a recent date Confirmation Order, certified by the Secretary of State of the state of formation of the Borrower Bankruptcy Court as complete and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the Borrower is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectcorrect;
(f) without limiting the generality of the foregoing, Administrative Agent shall have received, prior to the Closing Date, evidence satisfactory to it of the consummation of the Rights Offering (as defined in the Reorganization Plan) and payment or funding of all amounts and reserves described in Section 3.24;
(g) prior to the Closing Date, all Property of the Estate (as defined in the Bankruptcy Code) of the Filing Company shall have vested in the reorganized Filing Company free and clear of all Liens other than Liens in favor of the Mortgage Lender securing the Mortgage Debt and Liens permitted pursuant to Section 5.2, and Administrative Agent shall have received a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) evidence satisfactory to it of the Borrower with respect to each merger of the officers of reorganized Filing Company with and into Company, with Company as the Borrower authorized to execute and deliver the Credit Documents to which the Borrower is a party and authorized to execute and deliver on behalf of the Borrower Requests for Extensions of Credit;
(g) the Administrative Agent shall have received copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the Borrower of (A) the by-laws of the Borrower and (B) all corporate or other necessary action taken by the Borrower to authorize the execution, delivery and performance of the Credit Documents to which it is a partysurviving corporation;
(h) following the Administrative Agent shall have received a certificate of Effective Date and after giving effect to the Borrower, signed on behalf of Borrower transactions contemplated by the Borrower’s chief executive officer Financing Documents, the Borrowers shall not have any outstanding Debt or chief financial officer, confirming to the knowledge of such officer that as of such date preferred stock other than (i) Debt incurred under the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materialityFinancing Documents, true and correct in all respects), and (ii) no Default the Mortgage Debt, (iii) purchase money Debt and Capital Leases permitted under clause (c) of the definition of Permitted Indebtedness and (iv) Debt permitted pursuant to Section 5.1. Without limiting the generality of the foregoing, the Pre-Petition Loan Agreements shall have been terminated, and all loans, interest and other amounts accrued or Event owing thereunder shall have been paid in full and all Liens granted in respect thereof shall have been released and extinguished and the terms and conditions of Default has occurred and is continuingany such release shall be satisfactory to the Administrative Agent;
(i) following the Administrative Agent Effective Date and after giving effect to the Lenders transactions contemplated by the Financing Documents, there shall have been paid all fees due and payable in connection herewith (including fees and expenses be no Liens on any asset of counsel)Borrowers other than Liens permitted pursuant to Section 5.2;
(j) the receipt by Administrative Agent shall have received a Disbursement Instruction Agreement executed by of those documents, instruments and/or agreements set forth on Schedule 7.4 that are required to be delivered to Administrative Agent prior to the Borrower;initial extension of credit hereunder pursuant to Schedule 7.4; and
(k) the receipt by Administrative Agent and the Lenders shall have received (i) the financial statements referenced in Section 5.19(b) and (ii) a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending March 31, 2019;
(l) the Borrower or any Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall, collectively, have delivered to the Administrative Agent, and any Lender requesting the same, one Beneficial Ownership Certification in relation to the Borrower or each such Subsidiary, in each case, at least five (5) Business Days prior to the date of closing;
(m) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act;
(n) the Administrative Agent shall have received and reviewed, with results satisfactory to the Administrative Agent and its counsel, information regarding litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent), real estate leases, material contracts, debt agreements, property ownership, environmental matters, contingent liabilities and management of the Borrower and its Subsidiaries; (o) the Administrative Agent shall have received such other documents, instruments and/or agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, Agent may reasonably request; and
(p) In the good faith, reasonable judgment of the Administrative Agent:
(i) since December 31, 2018, there shall not have occurred a material adverse change in the condition (financial or otherwise), operations, business, assets, liabilities or prospects of the Consolidated Group taken as a whole or in the facts and information regarding such entities as represented to date, nor shall there have been a downgrade of the Borrower’s credit rating of two or more notches;
(ii) no action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that purports (a) to materially and adversely affect the Borrower or its Subsidiaries, or (b) to affect any transaction contemplated hereby, other than as disclosed to the Administrative Agent and the Lenders on or prior to April 15, 2019;
(iii) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(iv) the Borrower and each other Credit Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(v) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit Documents.
Appears in 1 contract
Samples: Credit and Security Agreement (Seracare Life Sciences Inc)
