Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders): (a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) [Reserved.] (c) [Reserved.] (d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer: (i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date; (ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and (iii) Enclosing: (A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and (B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower. (e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date: (i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower; (ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and (iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion. (f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of: (i) the Agreed Form of Scheme Press Announcement; and (ii) the executed Transaction Agreement. (g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and final.
Appears in 3 contracts
Sources: 364 Day Bridge Credit Agreement, 364 Day Bridge Credit Agreement (AbbVie Inc.), 364 Day Bridge Credit Agreement
Conditions Precedent to Effective Date. This The effectiveness of this Agreement shall become effective on and as is subject to the satisfaction of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):precedent:
(a) The Administrative Agent Agent’s receipt of the following, each of which shall be originals, facsimiles or PDFs (or its counselfollowed promptly by originals) shall have received from unless otherwise specified, each party hereto either properly executed by a Responsible Officer of the Borrower:
(i) executed counterparts of this Agreement satisfying the requirements of Section 11.10;
(ii) a counterpart customary certificate of the Secretary or Assistant Secretary of the Borrower attaching copies of its certificate of incorporation and by-laws as in effect on the Effective Date, a good standing certificate for it from the Secretary of State of the State of Delaware dated as of a recent date and resolutions of its Board of Directors authorizing execution, delivery and performance of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of it is a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date)party; and
(iii) Enclosing:
(A) Copies a customary incumbency certificate in respect of each of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body officers of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers who are authorized to sign this Agreement and the other Loan Documents on its behalf and who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby.
(b) All fees required by the Loan Documents to be delivered paid (including fees payable on or prior to the Effective Date pursuant to the Fee Letters) by the Borrower hereunder; and
Borrower, and all invoiced expenses (iiiincluding Attorney Costs) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory required to be paid by the Borrower, to the Administrative Agent. The Borrower hereby requests such counsel , the Arrangers or any Lender prior to deliver such opinion.
(f) The Administrative Agent the Effective Date shall have received a copybeen paid, certified by to the extent that such invoices have been presented to the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 two (2) Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, .
(c) The Arrangers shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the Patriot USA PATRIOT Act, in each case relating that has been requested in writing prior to the Borrower. Effective Date.
(d) The Administrative Agent shall notify representations and warranties of the Borrower contained in ARTICLE V (other than Section 5.14) or any other Loan Document shall be true and the Lenders correct on and as of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)and there shall be no Default hereunder, and such notice the Borrower shall be conclusivehave delivered a certificate from a Responsible Officer certifying to the satisfaction of the condition precedent in this clause (d).
(e) The Borrower shall have received (x) a copy of the fully executed Purchase Agreement, binding (y) a copy of the Business Combination Agreement, and final(z) a copy of the Offer Announcement, in each case, in form and substance satisfactory to the Lenders.
Appears in 3 contracts
Sources: Senior Bridge Term Loan Agreement, Senior Bridge Term Loan Agreement (McKesson Corp), Senior Bridge Term Loan Agreement (McKesson Corp)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The obligations of the first date on which Lender to make its Commitment available hereunder shall be subject to the fulfillment of each of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of Date in a manner satisfactory to the Borrower signed by a Responsible OfficerLender:
(i) Certifying that no Default or Event of Default The Lender shall have occurred or would occur received the following documents, each dated and be continuing in form and substance as is satisfactory to the Lender:
(1) copies of the resolution(s) of the Board of Commissioners of the Authority approving the execution and delivery of this Agreement, the Bank Note and the Third Supplemental Indenture, certified by an authorized official of the Authority as being true and complete and in full force and effect on the Effective Date;
(ii2) Certifying that certified copies of all approvals, authorizations and consents of any trustee, or holder of any indebtedness or obligation of the representations Authority or any Governmental Authority necessary for the Authority to enter into each of this Agreement, the Bank Note and warranties contained in Article 4 are true the Indenture and correct in all material respects the transactions contemplated herein and therein;
(3) (A) the audited annual financial statements of the Authority for the Fiscal Year ended June 30, 2020, and a copy of the most recent budget of the Authority (such requirement to be satisfied if such information is available on the Authority’s website) and as (B) the investment policy of the Authority;
(4) an executed certificate of an authorized official of the Authority dated the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects certifying as of such earlier date and except where such representations and warranties expressly relate to the Closing Dateauthority, in which case such representations incumbency and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true specimen signatures of the Borrower’s officers authorized officials authorized to sign this Agreement and the Bank Note and any other documents to be delivered by it hereunder and who will be authorized to represent the Borrower hereunderAuthority in connection with this Agreement, upon which the Lender may rely until it receives a new such certificate;
(5) an executed Authorized Representative Certificate;
(6) an executed certificate dated the Effective Date and executed by an Authorized Representative, certifying that as of the Effective Date the Debt Service Coverage Ratio is equal to or greater than 130%;
(7) an executed original or certified copy, as applicable, of each of the Program Documents;
(8) an original executed Bank Note; and
(9) an IRS Form W-9 duly completed by the Authority.
(ii) There shall not have occurred any change or any development involving a prospective change in the financial or operating condition of the Authority or its ability to pay the Obligations from that set forth in the audited annual financial statements of the Authority for the Fiscal Year ended June 30, 2020, provided to the Lender, that in the judgment of the Lender is material or adverse to the Lender. No law, regulation, ruling or other action of the United States, the State of California or the State of New York or any political subdivision or authority therein or thereof shall be in effect or shall have occurred, the effect of which would be to prevent the Authority or the Lender from fulfilling its respective obligations under this Agreement and the other Program Documents.
(iii) A favorable The Lender shall have received an opinion letter of ▇▇addressed to the Lender and dated the Effective Date from ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP , counsel to the Authority, in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests Lender and its counsel, which provides for, among other opinions, the following: (1) the execution, delivery and performance by the Authority of this Agreement, the Bank Note and the Indenture are within the Authority’s powers, have been duly authorized by all necessary action, and require no action by or in respect of, or filing with, any governmental body, agency or official that has not been accomplished and such counsel execution, delivery and performance does not violate the constitution or laws of the State, (2) this Agreement, the Bank Note and the Indenture have been duly authorized, executed and delivered and this Agreement and the Bank Note are valid, binding and enforceable against the Authority, and (3) such other matters as the Lender may reasonably request, in form and substance satisfactory to deliver such opinionthe Lender and its counsel.
(fiv) The Administrative Agent following statements shall be true and correct on the Effective Date, and the Lender shall have received a copy, certified by the Borrower and certificate signed by a Responsible Officer as true and completean Authorized Representative, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to dated the Effective Date, so long certifying that:
(1) (A) the representations and warranties of the Authority contained in the Indenture, the Bank Note and this Agreement are true and correct on and as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon as though made on and as of such conditions precedent being satisfied date (except to the extent any such representation or waived by the Required Lenders)warranty specifically relates to an earlier date, and then such notice representation or warranty shall be conclusive, binding true and final.correct as of such earlier date);
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement
Conditions Precedent to Effective Date. This The effectiveness of this Agreement shall become effective on and as be subject to the satisfaction or due waiver in accordance with Section 12.1 of each of the first following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent (the date on which the following such conditions precedent have been are satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by being herein in accordance with Section 12.1 shall be the Required Lenders“Effective Date”):
(a) The Administrative Agent Agent’s receipt of the following, each of which shall be originals or facsimiles (or its counselfollowed promptly by originals) shall have received from unless otherwise specified, each party hereto either (i) properly executed by a counterpart Responsible Officer of this Agreement the signing Loan Party each in form and the other Loan Documents signed on behalf of such party or (ii) written evidence substance reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officerand its legal counsel:
(i) Certifying a Notice of Borrowing in accordance with the requirements hereof;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Revolving Credit Note executed by the Borrower in favor of each Lender that no Default or Event has requested a Note at least two (2) Business Days in advance of Default shall have occurred or would occur and be continuing on the Effective Date;
(iiiv) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects each Collateral Document set forth on and as of Schedule 1.1A required to be executed on the Effective Date (except where as indicated on such representations and warranties expressly relate to an earlier dateschedule, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Dateduly executed by each Loan Party thereto, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosingtogether with:
(A) Copies copies of certificates, if any, representing the Borrower’s charter Pledged Equity referred to therein accompanied by undated stock powers executed in blank and by-laws, certified instruments evidencing the Pledged Debt indorsed in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; andblank;
(B) Copies to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution Mortgages and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP related fixture filings in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests ; and
(C) evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(v) [reserved];
(vi) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Effective Date;
(vii) an opinion from Ropes & ▇▇▇▇ LLP, New York counsel to deliver the Loan Parties substantially in the form of Exhibit G;
(viii) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transaction) substantially in the form attached hereto as Exhibit M;
(ix) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such opinioninsurance as to which the Collateral Agent shall have requested to be so named;
(x) certified copies of the Merger Agreement and schedules and other attachments thereto, duly executed by the parties thereto, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Effective Date and that the condition specified in clause (c) below has been satisfied;
(xi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and
(xii) a Borrowing Base Certificate, certified as complete and correct in all respects, which calculates the Borrowing Base as of the last Business Day of the most recent month ended at least fifteen (15) days prior to the Effective Date; provided, however, that, each of the requirements set forth in clauses (iv) and (ix) (with respect to title insurance) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Effective Date after the Borrower’s use of commercially reasonable efforts, without undue burden or cost, to provide such items on or prior to the Effective Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Effective Date (subject to extensions approved by the Administrative Agent in its reasonable discretion).
(b) All fees and expenses required to be paid hereunder and invoiced at least two (2) Business Days before the Effective Date shall have been paid in full in cash.
(c) Prior to or substantially simultaneously with the effectiveness of this Agreement on the Effective Date, (i) the Equity Contribution shall have been consummated; and (ii) the Merger shall be consummated in all material respects in accordance with the terms of the Merger Agreement (without giving effect to any amendments or waivers thereto that are materially adverse to the Lenders without the consent of the Arrangers, such consent not to be unreasonably withheld or delayed); provided, that (A) any change to the definition of “Material Adverse Effect” contained in the Merger Agreement shall be deemed materially adverse to the Lenders and the Arrangers and shall require the consent of the Arrangers and (B) a reduction in the purchase price under the Merger Agreement of less than 10% of the total Merger Consideration shall be deemed not to be materially adverse so long as it is applied to reduce the aggregate commitments in respect of the Term Facility and any commitments of the Arrangers to make bridge loans in lieu of the Senior Notes dollar-for-dollar on a pro rata basis.
(d) Prior to or substantially simultaneously with the effectiveness of this Agreement on the Effective Date, the Borrower shall have received (i) at least $1,200,000,000 in gross cash proceeds from borrowings under the Term Facility and (ii) at least $400,000,000 in gross cash proceeds from the issuance of the Senior Notes.
(e) The Intercreditor Agreement and the Term Facility Documentation shall have been duly executed and delivered by each party thereto, and shall be in full force and effect.
(f) The Administrative Agent Prior to or substantially simultaneously with the effectiveness of this Agreement on the Effective Date, the Borrower shall have received a copyterminated the Existing ABL Facility, certified by and shall have taken all other necessary actions such that, after giving effect to the Transaction, (i) Holdings, the Borrower and signed by a Responsible Officer as true and complete, of:
the Restricted Subsidiaries shall have outstanding no material Indebtedness for borrowed money or preferred Equity Interests other than (iA) the Agreed Form Loans and Letter of Scheme Press Announcement; and
Credit Obligations, (B) borrowings under the Term Facility, (C) borrowings under the Senior Notes and (D) Indebtedness permitted by Section 9.3(b) and (ii) the executed Transaction AgreementBorrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by Holdings.
(g) The Administrative Agent Arrangers shall have receivedreceived (i) the Annual Financial Statements, (ii) the Quarterly Financial Statements.
(h) The Arrangers shall have received the Pro Forma Financial Statements.
(i) The Arrangers shall have received at least 3 five (5) days prior to the Effective Date all documentation and other information reasonably requested in writing by them at least ten (10) Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior Date in order to allow the Effective Date, all documentation Arrangers and other information required by regulatory authorities under the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot USA PATRIOT Act.
(j) Since January 31, 2010, except (i) as set forth in the Company Disclosure Schedule (as defined in the Merger Agreement) or (ii) disclosed in any Filed SEC Document (as defined in the Merger Agreement), other than disclosures in such Filed SEC Documents contained in the “Risk Factors” and “Forward Looking Statements” sections thereof or any other disclosures in the Filed SEC Documents which are forward-looking in nature, there shall not have been any effect, change, event or occurrence that has had or would reasonably be expected to have a Closing Date Material Adverse Effect.
(k) The Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 4.1, each case relating Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Borrower. The Administrative Agent shall notify have received notice from such Lender prior to the Borrower and the Lenders of the proposed Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalspecifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 8.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [ReservedAll fees and other amounts then due and payable by the Consolidated Group to the Administrative Agent, the Arranger and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced by the relevant person at least one Business Day prior to the Effective Date and to the extent such amounts are payable on or prior to the Effective Date.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) Certified copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the Transactions and such Person to enter into and perform its obligations under the Loan Documents to which it is a party;
(ii) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation organization of the Borrower;
(iiiii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s its officers authorized to sign this Agreement and the other documents to be delivered by the Borrower it hereunder; and
(iiiiv) A favorable opinion letter of ▇▇▇Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(gd) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower.
(e) On the Effective Date, (x) no Default has occurred and is continuing and (y) each of the representations and warranties set forth in Section 4.01 are true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) as of the Effective Date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date.
(f) All fees and other amounts due and payable by the Consolidated Group to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to the Fee Letter or any similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Effective Date by the relevant person and to the extent such amounts are payable on or prior to the Effective Date.
(g) The commitments under the Existing Credit Agreement shall have been, or substantially concurrently with the occurrence of the Effective Date shall be, terminated in their entirety and no advances or other obligations thereunder (other than contingent obligations as to which no claim has been asserted) shall remain outstanding. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lendersin accordance with Section 8.01), and such notice shall be conclusive, conclusive and binding and finalevidence of the occurrence thereof.
Appears in 2 contracts
Sources: Revolving Credit Agreement (AbbVie Inc.), Revolving Credit Agreement (AbbVie Inc.)
Conditions Precedent to Effective Date. This Agreement The Lenders’ Commitments shall not become effective on and as hereunder unless all of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by in accordance with Section 9.02) on or prior to the Required Lenders):End Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, duly executed by each party hereto.
(b) [Reserved.]The Administrative Agent shall have received, for the Initial Borrower, a certificate of good standing (or the equivalent) from the appropriate governing agency of the Initial Borrower’s jurisdiction of organization (to the extent the concept of good standing is applicable in such jurisdiction);
(c) [Reserved.]The Administrative Agent shall have received a certificate, dated the Effective Date, of the Secretary or an Assistant Secretary of the Initial Borrower (or, if the Initial Borrower does not have a secretary or assistant secretary, any other Person duly authorized to execute such a certificate on behalf of the Initial Borrower) certifying as to (i) specimen signatures of the persons authorized to execute Loan Documents to which the Initial Borrower is a party, (ii) copies of the Initial Borrower’s constituent organizational documents, and (iii) the resolutions of the board of directors or other appropriate governing body of the Initial Borrower authorizing the execution, delivery and performance of the Loan Documents to which it is a party;
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of customary favorable written legal opinion dated the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate addressed to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iiiLenders) A favorable opinion letter of ▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.LLP;
(fe) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 three Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Date all documentation and other information regarding the Initial Borrower required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the Patriot ActAct to the extent reasonably requested at least ten Business Days prior to the Effective Date; and
(f) All costs, fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least two Business Days prior to the Effective Date and the fees contemplated by the Fee Letters payable to the Bookrunners, the Administrative Agent or the Lenders shall have been paid on or prior to the Effective Date, in each case relating case, to the Borrowerextent required by the Fee Letters or this Agreement to be paid on or prior to the Effective Date. The Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower and the Lenders of as to the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such notice shall be conclusive, binding conclusive and finalbinding.
Appears in 2 contracts
Sources: Credit Agreement (Keurig Dr Pepper Inc.), Term Loan Agreement (Keurig Dr Pepper Inc.)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of On the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either Effective Date, (i) a counterpart all obligations of this Agreement the Borrower hereunder incurred prior to such date (including, without limitation, the Borrower's obligations to reimburse the reasonable fees and the other Loan Documents signed on behalf expenses of such party or (ii) written evidence reasonably satisfactory counsel to the Administrative Agent and any fees and expenses payable to the Administrative Agent, the Lenders (including Scotia Capital) and their Affiliates pursuant to the Fee Letter or as otherwise previously agreed with the Borrower), shall have been paid in full, (ii) the Lenders under the Existing Loan Agreement shall consent to all Obligations under (and as such term is defined in) the Existing Loan Agreement (other than letters of credit which may include .pdf are not Existing Letters of Credit) being continued under this Agreement (as Loans (after giving effect to all repayments of the "Loans" under the Existing Loan Agreement made on the Effective Date) or facsimile transmission by the Existing Letters of a signed signature page Credit becoming Letters of this AgreementCredit hereunder), the Exiting Lenders shall have been paid in full as more fully described in Section 1.05 and, unless waived by the Administrative Agent, the Exiting Lenders shall have executed and delivered an Exiting Lender Acknowledgment in the form of Exhibit L and (iii) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The the Administrative Agent shall have received on or before the Effective Date, one or more certificates each of the Borrower signed by a Responsible Officer:
following (i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained unless waived in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered writing by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Lenders), in form and substance reasonably satisfactory in all respects to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion:
(a) the duly executed counterparts of this Agreement executed by the Borrower, the Guarantors and the Lenders.
(fb) The Administrative Agent shall have received a copyduly executed Revolving Credit Note for each Revolving Loan Lender requesting such instrument evidencing the Revolving Loan Commitment of such Lender;
(c) a duly executed Term B Note for each Term B Lender requesting such instrument evidencing the Term B Loan Commitment of such Lender;
(d) the duly executed Swingline Note;
(e) with respect to the Security Documents (other than the Mortgages), certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
duly executed Guaranty Agreement and Security Agreements, (ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior copies of filed UCC-1 financing statements and any applicable UCC-3 amendments required pursuant to the Effective Date, so long as requested no less than 10 Business Days prior Security Agreements and (iii) but only to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating extent not previously delivered to the Borrower. The Administrative Collateral Agent shall notify in connection with the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and final.Existing Loan Agreement,
Appears in 2 contracts
Sources: Credit Agreement (Intermet Corp), Credit Agreement (Ironton Iron Inc)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfiedare satisfactory) (or waived by the Required Lendersin accordance with Section 9.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [ReservedAll fees and other amounts then due and payable by the Consolidated Group to the Administrative Agent, the Arranger and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced by the relevant person at least one Business Day prior to the Effective Date and to the extent such amounts are payable on or prior to the Effective Date.]
(c) [ReservedOn the Effective Date, the Borrower and the Consolidated Group shall have sufficient Designated Cash to consummate the Transactions evidenced by a certificate of the Borrower, dated the Effective Date and delivered to the Administrative Agent, to such effect.]
(d) The Administrative Agent shall have received on or before the Effective Date, one each dated on or more certificates of the Borrower signed by a Responsible Officerabout such date:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies Certified copies of the resolutions or similar authorizing documentation of the governing body bodies of each of the Borrower and each Guarantor authorizing the execution Transactions and delivery of such Person to enter into and perform its obligations under the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.Documents to which it is a party;
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(iii) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the BorrowerBorrower and each Guarantor, but only where such concept is applicable;
(iiiii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower and each Guarantor certifying the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower it hereunder; and
(iiiiv) A favorable opinion letter of ▇(i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP and (ii) Ogier Legal, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(fe) The Administrative Agent shall have received a copy, certified by the Borrower and signed Borrower, of a draft of the Press Release or Offer Press Announcement (as applicable, depending upon whether it is proposed to effect the Shire Acquisition by way of a Responsible Officer as true and complete, of:
(iScheme or Takeover Offer) in the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreementform in which it is proposed to be issued.
(gf) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to AbbVie and its Subsidiaries, including the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lendersin accordance with Section 9.01), and such notice shall be conclusive, binding conclusive and finalbinding.
Appears in 2 contracts
Sources: 364 Day Bridge Credit Agreement (AbbVie Inc.), 364 Day Bridge Credit Agreement (AbbVie Inc.)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 8.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [ReservedAll fees and other amounts then due and payable by the Consolidated Group to the Administrative Agent, the Arranger and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced by the relevant person at least one Business Day prior to the Effective Date and to the extent such amounts are payable on or prior to the Effective Date.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) Certified copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the Transactions and such Person to enter into and perform its obligations under the Loan Documents to which it is a party;
(ii) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation organization of the Borrower;
(iiiii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s its officers authorized to sign this Agreement and the other documents to be delivered by the Borrower it hereunder; and
(iiiiv) A favorable opinion letter of ▇▇▇Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(gd) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower.
(e) Since December 31, 2017, except to the extent disclosed in any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K, in each case filed by the Borrower with the Securities and Exchange Commission after such date and on or prior to the Effective Date, there shall not have occurred any event or condition that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lendersin accordance with Section 8.01), and such notice shall be conclusive, binding conclusive and finalbinding.
Appears in 2 contracts
Sources: 364 Day Term Loan Credit Agreement (AbbVie Inc.), 364 Day Term Loan Credit Agreement (AbbVie Inc.)
Conditions Precedent to Effective Date. This Agreement Article II hereof shall become be effective on and as of the first date (the "Effective Date"), on which each of the following conditions precedent shall have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):duly waived:
(a) The Administrative Agent (or its counsel) Merger Agreement shall have received from each party hereto either (i) a counterpart of this Agreement be in full force and effect and the other Loan Documents signed on behalf Merger shall be consummated immediately following the funding of such party the Advances in all material respects in accordance with the Merger Agreement, without any waiver or (ii) written evidence reasonably satisfactory amendment not consented to by the Administrative Agent (which may include .pdf of any material term, provision or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementcondition set forth therein, and in compliance with all applicable laws.
(b) [ReservedThe aggregate amount of cash proceeds received by the Company Shareholders in connection with the Merger shall not exceed $111,600,000.]
(c) [ReservedThe Lender Parties shall be satisfied that all Existing Debt, other than the Debt of the Borrower set forth on Schedule XIV (the "Surviving Debt"), has been (or will be, immediately following the Merger) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished; the aggregate principal amount of Revolving Credit Advances outstanding after giving effect to all Borrowings on the Effective Date) shall not exceed $70,000,000.]
(d) Before giving effect to the Merger and the other transactions contemplated by this Agreement, there shall have occurred no material adverse change in the business condition (financial or otherwise), operations, performance, properties or prospects of (x) the Borrower and its Subsidiaries, taken as a whole, since October 31, 1998, and (y) the Company and its Subsidiaries, taken as a whole, since January 30, 1999.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of (x) the Borrower and its Subsidiaries, taken as a whole, or (y) the Company and its Subsidiaries, taken as a whole, other than the matters described on Schedule II (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of the Merger, this Agreement, any Note, any other Loan Document, any Related Document or the consummation of the transactions contemplated hereby, and there shall have been no material adverse change in the status, or financial effect on the Borrower, Company or any of their respective Subsidiaries, of the Disclosed Litigation from that described on Schedule II.
(f) All governmental and third party consents and approvals necessary in connection with the Transaction and the Facilities shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect; all applicable waiting periods shall have expired without any adverse action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the Transaction or the Facilities.
(g) All of the information provided by or on behalf of the Borrower or by or on behalf of the Company to the Administrative Agent and the Lender Parties prior to their commitment in respect of the Facilities (the "Pre-Commitment Information") shall, taken as a whole, be true and correct in all material respects; and no additional information shall have come to the attention of the Administrative Agent or the Lender Parties that is inconsistent in any material adverse respect with the Pre-Commitment Information or that could reasonably be expected to have a Material Adverse Effect.
(h) The Borrower shall have paid all accrued fees of the Administrative Agent.
(i) The Administrative Agent shall have received on or before the Effective DateDate the following, one or more certificates of each dated such day (unless otherwise specified), in form and substance satisfactory to the Borrower signed by a Responsible OfficerLender Parties (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) Certifying The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower and each other Loan Party approving the Merger, this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Merger, this Agreement, the Notes, each other Loan Document and each Related Document.
(iii) A copy of the charter of the Borrower and each other Loan Party and each amendment thereto, certified (as of a date reasonably near the Effective Date) by the Secretary of State of the jurisdiction of its incorporation as being a true and correct copy thereof.
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the Effective Date, listing the charter of the Borrower and each other Loan Party and each amendment thereto on file in his office and certifying that no Default (A) such amendments are the only amendments to the Borrower's or Event such other Loan Party's charter on file in his office, (B) the Borrower and each other Loan Party have paid all franchise taxes to the date of Default such certificate and (C) the Borrower and each other Loan Party are duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation.
(v) A copy of a certificate of the Secretary of State of each state where the Borrower and each other Loan Party has a place of business, dated reasonably near the Effective Date, stating that the Borrower is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate; and
(vi) A certificate of the Borrower and each other Loan Party, signed on behalf of the Borrower and such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall have occurred be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter of the Borrower or would occur such other Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(j)(iii), (B) a true and be continuing correct copy of the bylaws of the Borrower and such other Loan Party as in effect on the Effective Date;
, (iiC) Certifying that the due incorporation and good standing of the Borrower and such other Loan Party as a corporation organized under the laws of the State of Delaware, and the absence of any proceeding for the dissolution or liquidation of the Borrower, the Company or such other Loan Party, (D) the truth of the representations and warranties contained in Article 4 are true and correct in all material respects the Loan Documents as though made on and as of the Effective Date and (except where such representations E) the absence of any event occurring and warranties expressly relate to an earlier datecontinuing, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to or resulting from the Closing Date, in which case such representations and warranties shall not be required to be made initial Borrowing occurring on the Effective Date); and, that constitutes a Default.
(iiivii) Enclosing:
(A) Copies A certificate of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Secretary or an Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the each other Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower Party certifying the names and true signatures of the Borrower’s officers of the Borrower and such other Loan Party authorized to sign this Agreement Agreement, the Notes, each other Loan Document and each Related Document to which they are or are to be parties and the other documents to be delivered hereunder and thereunder.
(viii) An amended and restated security agreement in substantially the form of Exhibit D (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Security Agreement"), duly executed by the Borrower hereunder; and each Subsidiary Guarantor, together with:
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt referred to therein indorsed in blank,
(B) signed originals of proper financing statements, to be filed on or before the Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the Effective Date, listing the financing statements referred to in clause (B) above and all other effective financing statements filed in the jurisdictions referred to in clause (B) above that name the Company as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the Security Agreement,
(F) copies of the Assigned Agreements referred to in the Security Agreement, and
(iiiG) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken.
(ix) An amended and restated pledge agreement in substantially the form of Exhibit E (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Pledge Agreement"), duly executed by Holding, together with
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(B) signed originals of proper financing statements, to be filed on or before the Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interest created under the Pledge Agreement, covering the Collateral, described in the Pledge Agreement,
(C) completed requests for information, dated on or before the Effective Date, listing the financing statements referred to in clause (B) above and all other effective financing statements field in the jurisdictions referred to in clause (B) above that name Holding as debtor, together with copies of such other financing statements, and
(D) evidence that all other action that the Administrative Agent may deem necessary or desirable to perfect and protect the first priority liens and security interests created under the Pledge Agreement has been taken.
(x) An amended and restated subsidiary guaranty in substantially the form of Exhibit F (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor.
(xi) Certified copies of each of the Related Documents in existence on such date, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith, in each case certified by a Responsible Officer.
(xii) Certificates, in substantially the form of Exhibit G, attesting to the Solvency of each Loan Party after giving effect to the Merger and the other transactions contemplated hereby, from its chief financial officer.
(xiii) Evidence of insurance naming the Administrative Agent as insured and loss payee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties, including, without limitation, business interruption insurance.
(xiv) Certified copies of each employment agreement and other compensation arrangement with each executive officer of any Loan Party or any of its Subsidiaries.
(xv) Certified copies of all Material Contracts of each Loan Party and its Subsidiaries, in each case certified by a Responsible Officer, to the extent not previously furnished.
(xvi) A Borrowing Base Certificate.
(xvii) A favorable opinion letter of Sullivan & Worcester, counsel for the Borrower an▇ ▇▇▇▇▇▇▇▇ g, in substantially the form of Exhibit H hereto and as to such other matter as any Lender Party through the Administrative Agent may reasonably request.
(xviii) A favorable opinion of Shearman & ▇▇▇▇▇ LLP Sterling, counsel for the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and final.
Appears in 2 contracts
Sources: Credit Agreement (Quality Stores Inc), Credit Agreement (Quality Stores Inc)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date that each of the first date on which the following conditions precedent shall have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 9.05):
(a) The Administrative receipt by the Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Agent in form satisfactory to it of telegraphic, telex or its counsel) shall have received other written confirmation from each such party hereto either (i) of execution of a counterpart hereof by such party);
(b) receipt by the Agent of all documents the Agent may reasonably request relating to the existence and good standing of the Company, the corporate authority for and the validity of this Agreement and the Notes, and any other Loan Documents signed on behalf of such party or (ii) written evidence reasonably matters relevant hereto, all in form and substance satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]Agent;
(c) [Reserved.]receipt by the Agent and the Arrangers of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Effective Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(d) The Administrative receipt by the Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event GAAP audited consolidated balance sheets and related statements of Default shall have occurred or would occur income, stockholders’ equity and be continuing on cash flows of (A) the Company as of September 30, 2016, September 30, 2015 and September 30, 2014 for the fiscal years then ended and (B) the Acquired Entity as of December 31, 2015, December 31, 2014 and December 31, 2014 for the fiscal years then ended and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Company and the Acquired Entity for each subsequent fiscal quarter ended at least 45 days before the Effective Date;
(iie) Certifying that receipt by the representations Agent of (i) a pro forma condensed combined balance sheet and warranties contained in Article 4 are true and correct in all material respects on and related pro forma condensed combined income statement of the Company as of and for the Effective Date (except where such representations and warranties expressly relate twelve-month period ending on September 30, 2016, prepared after giving effect to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects the Transactions as if the Transactions had occurred as of such earlier date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), (ii) Company-prepared projections (including a summary income statement and except where such representations cash flow statement) for the three fiscal years ending September 30, 2017, September 30, 2018 and warranties expressly relate September 30, 2019 and a summary capitalization table as of September 30, 2016, in each case on a pro forma basis and substantially in the form shown to the Closing Date, in which case such representations Agent prior to the date of the Commitment Letter and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:a sources and uses table for the Transactions;
(Af) Copies receipt by the Agent of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation an opinion of the Borrower;
General Counsel of the Company, covering such matters as the Agent may reasonably request, and (ii) A customary certificate an opinion of the SecretarySkadden, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory LLP, counsel to the Administrative Agent. The Borrower hereby requests Company, covering such counsel to deliver such opinion.
(f) The Administrative matters as the Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcementmay reasonably request; and
(ii) the executed Transaction Agreement.
(g) The Administrative receipt by the Agent shall have received, of all documentation and other information reasonably requested by the Agent and the Lenders at least 3 three Domestic Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information Date that are required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall promptly notify the Borrower Company and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such notice shall be conclusive, conclusive and binding and finalon all parties hereto.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The occurrence of the first date Effective Date, and the obligation of the Issuing Bank to issue any Letter of Credit on which the Effective Date, is subject to the satisfaction of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):precedent:
(ai) The Administrative Agent (or its counsel) shall have received from the following, each party hereto either dated as of the Effective Date (i) a counterpart of this Agreement unless otherwise specified), in form and the other Loan Documents signed on behalf of such party or (ii) written evidence substance reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreementunless otherwise specified) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosingsufficient copies for each Lender:
(A) Copies of a Pledge Agreement for each Account Party, each duly completed and executed by such Account Party, and a Control Agreement for each Account Party, each duly completed and executed by Mellon and by the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; andAccount Party that is a party thereto.
(B) Copies of the resolutions or similar authorizing documentation RIHL Agreement, duly completed and executed by RIHL and consented to by its shareholders, and the RIHL Pledge Agreement and RIHL Control Agreement, each duly completed and executed by RIHL and consented to by its shareholders and, in the case of the governing body related Control Agreement only, by Mellon as well.
(C) Copies of the Borrower RenRe Agreement, duly completed and executed by RenRe and RUM.
(D) A certificate of a director of RIHL certifying that (i) RIHL has not received any notice of any charge or other encumbrance in relation to the Redeemable Preference Shares; and (ii) that the directors will register any transfer of Redeemable Preference Shares upon any Event of Default if RIHL fails for any reason to redeem the Redeemable Preference Shares as and under required applicable provisions of its Bye-laws and the Security Documents.
(E) Certified copies of the resolutions of the Board of Directors of each Credit Party approving the transactions contemplated by the Credit Documents and each Credit Document to which it is or is to be a party.
(F) A copy of a certificate of the Registrar of Companies, Secretary of State or other appropriate official of the jurisdiction of incorporation of each Credit Party, dated reasonably near the Effective Date, certifying as to the good standing (or local equivalent) of such Credit Party to the extent such concept applies in the jurisdiction of incorporation of a Credit Party.
(G) An executed proxy from Mellon, as registered holder of the Redeemable Preference Shares constituting Collateral, authorizing the execution Collateral Agent to redeem such Redeemable Preference Shares at any time after the occurrence of a Substitution Event, Suspension Event, Default or Event of Default.
(H) A certificate of each Credit Party, signed on behalf of such Credit Party by its President, a Director, or a Vice President (or equivalent officer) and delivery its Secretary or any Assistant Secretary (the statements made in which certificate shall be true on and as of the Loan DocumentsEffective Date), certified certifying as to (1) a true and correct copy of the constitutional documents of such Credit Party as in effect on the date on which the resolutions referred to in SECTION 3.01(i)(E) were adopted and on the Effective Date, (2) the due incorporation and good standing or valid existence of such Credit Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Credit Party, (3) the truth of the representations and warranties of such Credit Party contained in the Credit Documents as though made on and as of the Effective Date, (4) compliance by its the applicable Credit Parties as of the 44 Effective Date with the financial covenants set forth in SECTION 6.01, (5) the absence of any event occurring and continuing, or resulting from the Effective Date, that constitutes a Substitution Event, a Suspension Event, Default or Event of Default, provided that the Secretary or Assistant Secretary or any other Responsible Officer of need certify only as to the Borrowermatters in items (1) and (2) above.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(iI) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Secretary or an Assistant Secretary or another Responsible Officer of the Borrower each Credit Party certifying the names names, incumbency and true signatures of the Borrower’s officers of such Credit Party authorized to sign this Agreement each Credit Document to which it is or is to be a party and the other documents to be delivered by the Borrower hereunder; andhereunder and thereunder.
(iiiJ) A favorable opinion letter of (1) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, New York counsel for the Credit Parties, in substantially the form of EXHIBIT I-1 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, and (2) ▇▇▇▇▇▇▇ LLP ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel for the Credit Parties (other than RRE), in substantially the form of EXHIBIT I-2 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, (3) A&L Goodbody, Irish counsel for RRE, in substantially the form of EXHIBIT I-2A hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, and (4) ▇▇▇▇ ▇▇▇▇▇ LLP, counsel to Mellon, in substantially the form of EXHIBIT I-3 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(ii) All filings, recordations and other actions necessary or in the Administrative Agent's opinion desirable to perfect the Collateral Agent's liens and security interests in the Collateral shall have been made or taken, or arrangements satisfactory to the Administrative Agent for the completion thereof shall have been made; and the Administrative Agent shall have received the results of lien searches with respect to RIHL and the Account Parties in jurisdictions selected by it and shall be satisfied with the results thereof.
(iii) All governmental and third party consents and approvals necessary in connection with the consummation of the Credit Documents, and the other transactions contemplated thereby, including without limitation consent of the BMA to the pledge of the Redeemable Preference Shares by the Account Parties (other than RRE) and RIHL, shall have been obtained and remain in effect (with copies thereof delivered to the Administrative Agent) and shall be satisfactory in all respects to the Administrative Agent and no law or regulation shall be applicable or events have occurred which restrain the consummation of, or impose materially adverse conditions upon, the transactions under the Credit Documents.
(iv) The Administrative Agent shall have received (to the extent available to RenRe)
(A) an actuarial review of reserve adequacy for each of the Account Parties performed by independent actuaries acceptable to the Administrative Agent, (B) all audited GAAP and Annual Statements for the Credit Parties and their Subsidiaries for each of the past three years, with consolidating GAAP statements for RenRe and (C) confirmation from A.M. Best (or another rating agency mutually agreeable to the Arranger and the Administrative Agent) of current ratings of A- or better for each of the Account Parties that is rated.
(v) The corporate and capital structure of RIHL, including the terms of the Redeemable Preference Shares and other equity securities issued by RIHL, and all legal, tax, accounting, business and other matters relating to RIHL and to RenRe, the Account Parties and their subsidiaries, shall be satisfactory in all respects to the Administrative Agent.
(vi) The Custodial Agreements, Investment Agreement and PPM shall be in form and substance reasonably satisfactory in all respects to the Administrative Agent and a true and complete copy of each such document shall have been delivered to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(fvii) Since December 31, 2001, there shall not have occurred any event, condition or state of facts that has had, or could reasonably be expected to have, a Material Adverse Effect.
(viii) There shall not be any pending or threatened litigation, action, suit, investigation, proceeding, bankruptcy or insolvency, injunction, order or claim with respect to any Credit Party or its subsidiaries or the transactions contemplated by the Credit Documents, which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.
(ix) RenRe shall have paid all accrued fees of the Administrative Agent, the Arranger and the Lenders and all accrued expenses of the Administrative Agent (including the Attorney Costs of counsel (including local Bermuda counsel and Pennsylvania counsel) to the Administrative Agent) as provided in the Credit Documents and in the Fee Letter, in each case to the extent then due and payable.
(x) The Administrative Agent shall have received a copyCollateral Value Report, certified by together with account statements for each Custodial Account showing compliance with the Borrower and signed by Collateral Value requirements of the Credit Documents as of the Effective Date, together with a Responsible Officer report from RIHL showing the calculation of the aggregate Net Asset Value as true and complete, of:of the Effective Date of all of the Redeemable Preference Shares;
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(gxi) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders shall have received such other documents, certificates, opinions and instruments as the Administrative Agent or any Lender may reasonably request.
(xii) The Agents' and Lenders' satisfaction with the conditions set forth above which are stated as subject to the approval or satisfaction of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice Agents and/or Lenders shall be conclusive, binding conclusively evidenced by their execution and finaldelivery of this Agreement.
Appears in 1 contract
Sources: Reimbursement Agreement (Renaissancere Holdings LTD)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date that each of the first date on which the following conditions precedent shall have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 9.05):
(a) The Administrative receipt by the Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Agent in form satisfactory to it of telegraphic, telex or its counsel) shall have received other written confirmation from each such party hereto either (i) of execution of a counterpart hereof by such party);
(b) receipt by the Agent of all documents the Agent may reasonably request relating to the existence and good standing of the Company, the corporate authority for and the validity of this Agreement and the Notes, and any other Loan Documents signed on behalf of such party or (ii) written evidence reasonably matters relevant hereto, all in form and substance satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]Agent;
(c) [Reserved.]receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and required to be reimbursed or paid on the Effective Date under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(d) The Administrative receipt by the Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event GAAP audited consolidated balance sheets and related statements of Default shall have occurred or would occur income, stockholders’ equity and be continuing on cash flows of (A) the Company as of September 30, 2016, September 30, 2015 and September 30, 2014 for the fiscal years then ended and (B) the Acquired Entity as of December 31, 2015, December 31, 2014 and December 31, 2014 for the fiscal years then ended and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Company and the Acquired Entity for each subsequent fiscal quarter ended at least 45 days before the Effective Date;
(iie) Certifying that receipt by the representations Agent of (i) a pro forma condensed combined balance sheet and warranties contained in Article 4 are true and correct in all material respects on and related pro forma condensed combined income statement of the Company as of and for the Effective Date (except where such representations and warranties expressly relate twelve-month period ending on September 30, 2016, prepared after giving effect to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects the Transactions as if the Transactions had occurred as of such earlier date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements), (ii) Company-prepared projections (including a summary income statement and except where such representations cash flow statement) for the three fiscal years ending September 30, 2017, September 30, 2018 and warranties expressly relate September 30, 2019 and a summary capitalization table as of September 30, 2016, in each case on a pro forma basis and substantially in the form shown to the Closing Date, in which case such representations Agent prior to the date of the Commitment Letter and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:a sources and uses table for the Transactions;
(Af) Copies receipt by the Agent of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation an opinion of the Borrower;
General Counsel of the Company, covering such matters as the Agent may reasonably request, and (ii) A customary certificate an opinion of the SecretarySkadden, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory LLP, counsel to the Administrative Agent. The Borrower hereby requests Company, covering such counsel to deliver such opinion.
(f) The Administrative matters as the Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.may reasonably request;
(g) The Administrative receipt by the Agent shall have received, of all documentation and other information reasonably requested by the Agent and the Lenders at least 3 three Domestic Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information Date that are required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(h) receipt by the Agent of a certificate, in each case relating dated the Effective Date and signed by a duly authorized officer of the Company, either (i) setting forth the Net Proceeds received by the Company or any of its Subsidiaries from any Mandatory Commitment Reduction Event that shall have occurred after the Acquisition Agreement Date and on or prior to the BorrowerEffective Date (in which case the Commitments shall be automatically and permanently reduced on the Effective Date in the amount of such Net Proceeds in accordance with Section 2.11(b)) or (ii) confirming that no such Net Proceeds have been received. The Administrative Agent shall promptly notify the Borrower Company and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such notice shall be conclusive, conclusive and binding and finalon all parties hereto.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 8.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [ReservedAll fees and other amounts then due and payable by the Consolidated Group to the Administrative Agent, the Arranger and the Lenders under the Loan Documents or pursuant to the Agency Fee Letter and the Fee Letter and any other fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced by the relevant person at least one Business Day prior to the Effective Date and to the extent such amounts are payable on or prior to the Effective Date.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) Certified copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the Transactions and such Person to enter into and perform its obligations under the Loan Documents to which it is a party;
(ii) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation organization of the Borrower;
(iiiii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s its officers authorized to sign this Agreement and the other documents to be delivered by the Borrower it hereunder; and
(iiiiv) A favorable opinion letter of ▇K▇▇▇▇▇▇▇ & ▇E▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(gd) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower.
(e) On the Effective Date, (x) no Default has occurred and is continuing and (y) each of the representations and warranties set forth in Section 4.01 are true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) as of the Effective Date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date.
(f) The commitments under the Existing Credit Agreement shall have been, or substantially concurrently with the occurrence of the Effective Date shall be, terminated in their entirety and no advances or other obligations thereunder (other than contingent obligations as to which no claim has been asserted) shall remain outstanding. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lendersin accordance with Section 8.01), and such notice shall be conclusive, conclusive and binding and finalevidence of the occurrence thereof.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall not become effective on and as of until the first date on which each of the following conditions precedent have been is satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived in writing by Agent and the Required Lenders)::
(a) The Administrative This Agreement shall be executed by each Borrower, Obligor, Agent (or its counsel) and Lenders, and counterparts hereof as so executed shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory been delivered to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.Agent;
(b) [Reserved.]Agent shall have received an affirmation and consent from each Obligor in form, scope and substance reasonably satisfactory to Agent;
(c) [Reserved.]
(d) The Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of Obligors certifying that, after giving effect to the initial Loans and transactions hereunder occurring on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that the Obligors (taken as a whole) are Solvent; (ii) no Default or Event of Default shall have occurred or would occur exists; and be continuing on the Effective Date;
(iiiii) Certifying that the representations and warranties contained set forth in Article 4 Section 9 are true and correct in all material respects on and as of the Effective Date correct;
(except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties d) Agent shall have been received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and correct complete, and in all material respects full force and effect, without amendment except as shown; (ii) that an attached copy of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan DocumentsDocuments is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) that the charter documents of each Obligor have not been amended or modified since the Restatement Effective Date, or if any such charter documents have been so amended or modified, Agent shall have received copies of the charter documents of each Obligor, certified by its the Secretary of State or Assistant Secretary or any other Responsible Officer appropriate official of the Borrower.such Obligor’s jurisdiction of organization;
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on orgood standing certificates, as applicable, prior to for each Obligor, issued by the Secretary of State or other appropriate official of such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the Obligor’s jurisdiction of formation organization and each jurisdiction where such Obligor’s conduct of the Borrowerbusiness or ownership of Property necessitates qualification;
(iif) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable Agent shall have received a written opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Borrowers have paid all reasonable out-of-pocket fees and expenses of Agent shall and of legal counsel to Agent that have received, at least 3 Business Days been invoiced on or prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by connection with the Required Lenders)preparation, negotiation, execution and such notice shall be conclusive, binding and finaldelivery of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Conditions Precedent to Effective Date. This Agreement The Lenders’ Commitments shall not become effective on and as of hereunder until the first date (the “Effective Date”) on which each of the following conditions precedent have been shall be satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by in accordance with Section 9.01) on or prior to the Required Lenders):Commitment Termination Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement the following documents, which shall be dated the Effective Date and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably in form and substance satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible OfficerAgent:
(i) Certifying that no Default or Event This Agreement, duly executed and delivered by each of Default shall have occurred or would occur and be continuing on the Effective Date;Borrowers.
(ii) Certifying that Certified copies of (w) the representations charter and warranties contained in Article 4 are true and correct in all material respects on and as by-laws of each Borrower, (x) the resolutions of the Effective Date board of directors (except where such representations or equivalent governing body) of each Borrower authorizing and warranties expressly relate to an earlier dateapproving this Agreement, in which case such representations the Guaranty and warranties shall have been true the Notes and correct in the transactions contemplated by the Loan Documents, (y) all material respects as of such earlier date documents evidencing other necessary corporate action and except where such representations and warranties expressly relate governmental approvals, if any, with respect to the Closing Date, in which case Loan Documents and (z) a long form good standing certificate (or its equivalent) for each such representations and warranties shall not be required to be made on the Effective Date); andBorrower from its jurisdiction of organization.
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary secretary or another Responsible Officer an assistant secretary (or equivalent officer) of the each Borrower certifying the names and true signatures of the Borrower’s officers of each Borrower authorized to sign this Agreement Agreement, the Guaranty and the Notes and the other documents to be delivered by the Borrower hereunder; and. TERM LOAN AGREEMENT FMC CORPORATION
(iiib) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to The Lenders, the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent and the Arrangers shall have received a copy, certified by all fees required to be paid and due on the Borrower Effective Date and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall all expenses for which invoices have received, been presented at least 3 two Business Days prior to the Effective Date, so long as requested no less than 10 Business Days on or prior to the Effective DateDate (including, all documentation and other information required by regulatory authorities without limitation, amounts then payable under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required LendersAgency Fee Letter), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Sources: Term Loan Agreement (FMC Corp)
Conditions Precedent to Effective Date. This Agreement The Effective Date shall become effective occur upon the satisfaction of the following conditions precedent:
(a) Since May 31, 2008 there shall not have occurred and be continuing any Material Adverse Effect.
(b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(c) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Effective Date.
(d) On the Effective Date, the following statements shall be true and the Agent shall have received on behalf of the Lenders a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 5.01 are true and correct on and as of the first date on Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(e) The Borrower shall have paid all principal, interest, fees and other amounts which are unpaid and accrued under the following conditions precedent Existing Credit Agreement as of the Effective Date, and shall have been satisfied (with terminated all commitments under the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) Existing Credit Agreement (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) such commitments shall have received from terminated) effective on or prior to the Effective Date (and Wachovia, in its capacity as administrative agent under the Existing Credit Agreement and each party hereto either Lender that is also a “Lender” under the Existing Credit Agreement hereby (i) a counterpart waives any requirement of this Agreement prior written notice of the prepayment of any “Advances” or termination of “Commitments” under the Existing Credit Agreement, in each case as defined therein, and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory agrees that the occurrence of the Effective Date hereunder shall be deemed notice by the Borrower of the prepayment of any “Advances” and termination of the “Commitments” under the Existing Credit Agreement, and hereby amends, by agreement with Borrower, the provisions of the Existing Credit Agreement to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that extent necessary to effect such party has signed a counterpart of this Agreementresult).
(b) [Reserved.]
(c) [Reserved.]
(df) The Administrative Agent shall have received on or before the Effective DateDate the following, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before dated the Effective Date, each dated on or, as applicable, prior in form and substance satisfactory to such datethe Agent:
(i) A good standing certificate or similar certificate dated a date reasonably close Note to the Effective Date from the jurisdiction order of formation of the Borrower;each Lender (if any) that has requested one pursuant to Section 2.19.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes.
(iii) A customary certificate of the Secretary, Secretary or an Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement and the other documents Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder; and.
(iiiiv) A favorable opinion letter of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP ▇▇▇▇, counsel for the Borrower, in the form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionof Exhibit D-2.
(fv) The Administrative Agent shall have received A certificate of a copy, certified by duly authorized officer of the Borrower and signed by a Responsible Officer dated the Effective Date demonstrating compliance with the financial covenant contained in Section 6.02(c) as true and complete, of:
(i) of the Agreed Form end of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days fiscal quarter most recently ended prior to the Effective DateDate as to which financial statements are referred to in Section 5.01(e) or, so long as requested no less than 10 Business Days prior if later, for which financial statements have been delivered to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating Lenders pursuant to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required LendersSection 6.01(g), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date (such date, the “Effective Date”) when each of the first date on which the following conditions precedent have been is satisfied (or waived) in accordance with the terms herein:
4.1 The Administrative Agent and the Lenders, shall have received (a) reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under Section 12.03 of the Credit Agreement in connection with this Agreement (including, the fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent) and (b) a consent fee payable to the Administrative Agent acting reasonably in assessing whether for the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from account of each party hereto either (i) Lender that executes and delivers a signed counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory prior to the Administrative Agent Effective Date (which may include .pdf or facsimile transmission each such Lender, a “Consenting Lender”) in an amount equal to 0.15% of a signed signature page each such Consenting Lender’s pro rata share of this Agreement) that such party has signed a counterpart of this Agreement.the Borrowing Base in effect immediately prior to the Effective Date;
(b) [Reserved.]
(c) [Reserved.]
(d) 4.2 The Administrative Agent shall have received from the Borrower, each Guarantor, and the Lenders constituting the Required Lenders, counterparts of this Agreement signed on or before behalf of such Persons.
4.3 As of the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
after giving effect to this Agreement, (ia) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained of each Loan Party set forth in Article 4 the Credit Agreement and in each other Loan Document are true and correct in all material respects on (unless already qualified by materiality in which case such applicable representation and as of warranty shall be true and correct), except to the Effective Date (except where extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such earlier date and except where such representations (b) no Default, Event of Default or Borrowing Base Deficiency has occurred and warranties expressly relate is continuing. Each party hereto hereby authorizes and directs the Administrative Agent to declare the Closing Date, in which case such representations and warranties shall not be required this Agreement to be made on the Effective Date); and
effective (iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from shall occur) when it has received documents confirming or certifying, to the jurisdiction reasonable satisfaction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent, compliance with the conditions set forth in this Section 4. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent Such declaration shall have received a copybe final, certified by the Borrower conclusive and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior binding upon all parties to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Credit Agreement for all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalpurposes.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement The Effective Date shall become effective occur upon the satisfaction of the following conditions precedent:
(a) Since May 31, 2007 there shall not have occurred and be continuing any Material Adverse Effect.
(b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders in their reasonable discretion) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(c) The Borrower shall have paid all reasonable invoiced fees and out-of-pocket expenses of the Agent and the Lenders (including the reasonable invoiced fees and expenses of counsel to the Agent required by this Agreement), to the extent invoices therefor have been received at least one Business Day before such Effective Date.
(d) On the Effective Date, the following statements shall be true and the Agent shall have received on behalf of the Lenders a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 5.01 are true and correct on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):Effective Date, and
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of No event has occurred and is continuing that constitutes a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementDefault.
(be) [ReservedRESERVED].]
(c) [Reserved.]
(df) The Administrative Agent shall have received on or before the Effective DateDate the following, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before dated the Effective Date, each dated on or, as applicable, prior in form and substance satisfactory to such datethe Agent:
(i) A good standing certificate or similar certificate dated a date reasonably close Note to the Effective Date from the jurisdiction order of formation of the Borrower;each Lender (if any) that has requested one pursuant to Section 2.19.
(ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving the transactions contemplated by this Agreement and the execution and delivery of this Agreement and the Notes, if any, to be delivered by the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and such Notes.
(iii) A customary certificate of the Secretary, Secretary or an Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement and the other documents Notes, if any, to be delivered by the Borrower and the other documents to be delivered hereunder; and.
(iiiiv) A favorable opinion letter of (i) in-house counsel for the Borrower in the form of Exhibit D-1 and (ii) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP ▇▇▇▇, counsel for the Borrower, in the form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionof Exhibit D-2.
(fv) The Administrative Agent shall have received A certificate of a copy, certified by duly authorized officer of the Borrower and signed by a Responsible Officer dated the Effective Date demonstrating compliance with the financial covenant contained in Section 6.02(c) as true and complete, of:
(i) of the Agreed Form end of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days fiscal quarter most recently ended prior to the Effective DateDate as to which financial statements are referred to in Section 5.01(e) or, so long as requested no less than 10 Business Days prior if later, for which financial statements have been delivered to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating Lenders pursuant to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required LendersSection 6.01(g), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement Article II hereof shall become be effective on and as of the first date (the "Effective Date") on which each of the following conditions precedent shall have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):duly waived:
(a) The Administrative Agent (elements of the Transaction to be effected on or its counselbefore the Closing Date as set forth on Schedule 3.01(a) hereto shall have received from each party hereto either (i) a counterpart of this Agreement been consummated on terms and the other Loan Documents signed on behalf of such party or (ii) written evidence conditions reasonably satisfactory to the Administrative Agent Lenders and in compliance with applicable law and regulatory approvals, and each of the Lenders shall be satisfied in all reasonable respects with the terms and conditions of all material agreements and instruments relating to the Transaction and there shall not have been any material modification, amendment, supplement or waiver to any material agreement or instrument or instrument relating to the Transaction that could adversely affect the Lenders in any material respect including, without limitation, any modification, amendment, supplement or waiver relating to (which may include .pdf A) the amount or facsimile transmission type of a signed signature page consideration to be paid in connection with the Transaction and all related tax, legal and accounting matters and (B) the capitalization, structure and equity ownership of this Agreement) that such party has signed a counterpart of this Agreementthe Borrower and its Subsidiaries after giving effect to the Transaction.
(b) [ReservedThe Lender Parties shall be satisfied with the corporate or partnership (as applicable) and legal structure and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter, bylaws and each class of capital stock of each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.]
(c) [ReservedThe Lender Parties shall be satisfied that all Existing Debt (including, without limitation, Debt in respect of the "Term Facilities" under the Existing Credit Agreement, the Indenture and the ▇▇▇▇▇), other than the Surviving Debt, has been (or, with the proceeds of the Captain D's Financing, the COI Financing or the Real Estate Financing, will be) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all such Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties.]
(d) The Administrative Agent shall have received on or before Before giving effect to the Effective Datetransactions contemplated by this Agreement, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default there shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier dateno Material Adverse Change since October 31, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower1999.
(e) The Administrative Agent There shall have received on exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before the Effective Dateany court, each dated on or, as applicable, prior to such date:
governmental agency or arbitrator that (i) A good standing certificate would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 3.01(d) (the "Disclosed Litigation") or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the Secretarytransactions contemplated hereby or thereby, Assistant Secretary and there shall have been no adverse change in the status, or another Responsible Officer financial effect on, any Loan Party or any of its Subsidiaries, of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionDisclosed Litigation from that described on Schedule 3.01(e).
(f) The Administrative Agent Lender Parties shall have received completed a copy, certified by due diligence investigation of the Borrower and signed by a Responsible Officer as true its Subsidiaries in scope, and completewith results, of:
satisfactory to the Lender Parties, and nothing shall have come to the attention of the Lender Parties during the course of such due diligence investigation to lead them to believe that (i) the Agreed Form of Scheme Press Announcement; and
Information Memorandum was or has become misleading, incorrect or incomplete in any material respect or (ii) any changes or developments have occurred, or any new or additional information has come to their attention regarding the executed Borrower or any of its Subsidiaries or any aspect of the Transaction Agreementthat either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect or adversely affect the Lender Parties or the Transaction; without limiting the generality of the foregoing, the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries as they shall have requested.
(g) The Borrower shall have paid all accrued fees of the Administrative Agent shall have received, at least 3 Business Days prior and the Lender Parties and all accrued and invoiced expenses of the Administrative Agent and the Lender Parties (including the accrued and invoiced fees and expenses of counsel to the Effective Date, so long as requested no less than 10 Business Days prior Administrative Agent and local counsel to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. Administrative Agent).
(h) The Administrative Agent shall notify be satisfied with (i) all arrangements between the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied its Subsidiaries (or waived by the Required Lendersother than Captain D's and its Subsidiaries), on the one hand, and such notice Captain D's and its Subsidiaries, on the other hand, and (ii) all Related Documents.
(i) The SPVs shall be conclusive, binding have obtained the Real Estate Financing on terms and finalconditions satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Shoneys Inc)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on or before September 20, 2012 (the “Effective Date”) on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders)::
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementparty.
(b) [ReservedThe Borrower shall have paid all accrued fees and expenses of the Agent, the Lead Arranger and the Lenders (including the accrued fees and expenses of counsel to the Agent) required to be paid on or prior to the Effective Date.]
(c) [ReservedOn the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes an Event of Default.]
(d) The Administrative Agent shall have received on or before the Effective Date the following, each dated the Effective Date, one or more certificates of in form and substance satisfactory to the Borrower signed by a Responsible OfficerAgent:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies Certified copies of the resolutions or similar authorizing documentation of the governing body Board of Directors of the Borrower authorizing approving this Agreement and the execution Notes, and delivery of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the BorrowerNotes.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Secretary or an Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered by the Borrower hereunder; and.
(iii) A favorable opinion letter Copies of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form the articles or certificate of incorporation of the Borrower, together with all amendments, and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opiniona certificate of good standing, as of a recent date.
(fe) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 No later than three Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation Agent and other the Lenders shall have received any information required by regulatory authorities under applicable the Patriot Act or necessary for the Agent or any Lender to verify the identity of the Borrower as required by the Patriot Act or other “know your customer” and anti-money laundering rules and regulations, including ; provided that such information shall have been requested by the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders reasonably in advance of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalDate.
Appears in 1 contract
Sources: Credit Agreement (At&t Inc.)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date that each of the first date on which the following conditions precedent shall have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 9.05):
(a) The Administrative receipt by the Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Agent in form satisfactory to it of telegraphic, telex or its counsel) shall have received other written confirmation from each such party hereto either (i) of execution of a counterpart of this Agreement and the other Loan Documents signed on behalf of hereof by such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.party);
(b) [Reserved.]receipt by the Agent of all documents the Agent may reasonably request relating to the existence and good standing of the Company, the corporate authority for and the validity of this Agreement, and any other matters relevant hereto, all in form and substance satisfactory to the Agent;
(c) [Reserved.]receipt by the Agent and the Arranger of all fees, reasonable out-of-pocket expenses and other compensation due and payable under this Agreement, the Commitment Letter or the Fee Letter, including to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder;
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered receipt by the Borrower hereunder; and
(iii) A favorable opinion letter Agent of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(e) receipt by the Agent of a certificate, in each case relating dated the Effective Date and signed by a duly authorized officer of the Company, either (i) setting forth the Net Proceeds received by the Company or any of its Subsidiaries from any Mandatory Commitment Reduction Event that shall have occurred after the Acquisition Agreement Date, and on or prior to the BorrowerEffective Date (in which case, the Commitments shall be automatically and permanently reduced on the Effective Date in the amount of such Net Proceeds in accordance with Section 2.11(b)) or (ii) confirming that no such Net Proceeds have been received. The Administrative Agent shall promptly notify the Borrower Company and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such notice shall be conclusive, conclusive and binding and finalon all parties hereto.
Appears in 1 contract
Conditions Precedent to Effective Date. This The obligations of the Bank to make the Commitment available hereunder shall be subject to the fulfillment of each of the following conditions precedent on or before the Effective Date in a manner satisfactory to the Bank:
(i) The Bank shall have received a fully executed original of this Agreement shall become effective and the original Notes, duly issued by the Agency, and confirmation that the Notes are not held book-entry, that no CUSIP number has been assigned to the Notes, that the Notes are not rated and that the Notes are in a single denomination and is not divisible or transferable except to a bank, financial institution or a qualified investor and fully executed and full executed originals of the other Loan Documents or acknowledged copies of such other Loan Documents certified by an Authorized Representative as true, correct and complete copies thereof, and certifying that such documents were duly issued, adopted or executed and delivered, have not been modified, amended or rescinded and are in full force and effect on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):Effective Date.
(aii) The Administrative Agent (or its counsel) Bank shall have received from a copy of the Resolution of the Agency authorizing the execution and delivery of this Agreement, the Notes and the other Loan Documents, certified as of the Effective Date by an Authorized Representative.
(iii) The Bank shall have received certified copies of all approvals, authorizations and consents of any trustee, or holder of any indebtedness or obligation of the Agency or any governmental agency or public authority, necessary for the Agency to enter into each party hereto either of the Loan Documents and the transactions contemplated herein and therein.
(iiv) a counterpart The Bank shall have received certified copies of the Agency’s JPA Agreement (including all amendments thereto and specifically including the second amendment thereto approving the name change for the Agency to Monterey One Water) and all legally required filings relating to the Agency, including without limitation, the most recent “Roster of Facts, Public Agencies” and the most recent “Notice of Joint Powers Agreement” with the California Secretary of State, and each certified by the California Secretary of State not more than thirty (30) days prior to the Effective Date and otherwise in form reasonably acceptable to the Bank.
(v) The Bank shall have received an opinion addressed to the Bank and dated the Effective Date of counsel to the Agency as to the due authorization, execution and delivery, validity and enforceability with respect to the Agency of this Agreement and the Notes and the other Loan Documents signed on behalf of Documents, and such party or (ii) written evidence other matters as the Bank may reasonably request, in form and substance satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementBank.
(b) [Reserved.]
(c) [Reserved.]
(dvi) The Administrative Agent following statements shall have received be true and correct on or before the Effective Date, one or more certificates and the Bank shall have received a certificate incorporating by reference the definitions of the Borrower capitalized terms defined in this Agreement, signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on an Authorized Representative, dated the Effective Date;, certifying the name, incumbency and specimen signature of each individual authorized to sign this Agreement, the Notes and the other Loan Documents and the other documents or certificates to be delivered by the Agency pursuant hereto or thereto, on behalf of the Agency, and of each individual authorized to act on behalf of the Agency for purposes of this Agreement, on which the Bank may conclusively rely until a revised certificate is similarly delivered and as to the matters set forth in Sections 2.3(a)(xiii), (xiv), (xv) and (xvi) hereof.
(iivii) Certifying The Bank shall have received an opinion addressed to the Bank and dated the Effective Date of bond counsel as to the due authorization, execution and delivery, validity and enforceability with respect to the Agency of this Agreement and the Notes and of the pledge of and subordinate lien on the Net Revenues and the pledge of and senior lien on the other Collateral to secure the Payment Obligations as described in Section 4.1 hereof, and to the effect that the interest on the Tax-Exempt Revolving Loans is excludable from gross income for federal income tax purposes and such other matters as the Bank may reasonably request, in form and substance satisfactory to the Bank.
(viii) The Bank shall have received such authorization documents, certifications, incumbency certificates and opinions with respect to the other parties to the transactions as the Bank may reasonably request, in form and substance satisfactory to the Bank.
(ix) The Bank shall have received evidence satisfactory to the Bank that as of the Effective Date the only Net Revenue Debt are the Series 2012 Bonds, the Series 2013 Bonds, the Bureau Loan (but only so long as the Agency’s ▇▇▇▇▇▇▇ Valley Reclamation Project is included as part of the Wastewater System) and the PWMGRP SRF Loan.
(x) The Bank shall have received certified copies of the proceedings of the Board of Directors of the Agency approving all rate adjustments to become effective after the Effective Date.
(xi) The Bank shall have received evidence satisfactory to the Bank that the Agency maintains with responsible insurers all such insurance on the Wastewater System required by Section 7.13 hereof and evidence satisfactory to the Bank that the Bank will receive thirty (30) days’ prior written notice of any cancellation of any such insurance policy and evidence satisfactory to the Bank that all premiums necessary to be paid for the effectiveness of such insurance have been paid by the Agency.
(xii) The representations and warranties of the Agency contained in Article 4 each of the Loan Documents and each certificate, letter, other writing or instrument delivered by the Agency to the Bank pursuant hereto or thereto are true and correct in all material respects on and as of the Effective Date (except where such representations as though made on and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); anddate.
(iiixiii) Enclosing:
(A) Copies No Default or Event of the Borrower’s charter Default has occurred and by-laws, certified in each instance by its Secretary, Assistant Secretary is continuing or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing would result from the execution and delivery of this Agreement or the making of the Commitment.
(xiv) Since the most current date of the information, financial or otherwise, supplied by the Agency to the Bank, there has been no change in the assets, liabilities, financial position or results of operations of the Agency which might reasonably be anticipated to cause a Material Adverse Effect and the Agency has not incurred any obligations or liabilities which might reasonably be anticipated to cause a Material Adverse Effect.
(xv) The Bank shall have received certified copies of the final executed PWMGRP SRF Loan/Proposition 1 Water Recycling Funding Program Construction Grant Documents and the final executed Proposition 1 Storm Water Grant Documents and evidence of eligibility to receive proceeds of the PWMGRP SRF Loan, Proposition 1 Water Recycling Funding Program Construction Grant Monies and Proposition 1 Storm Water Grant Monies.
(xvi) All necessary action on the part of the Agency shall have been taken as required for the valid pledge of and subordinate lien on the Net Revenues and the pledge of and senior lien on the other Collateral to secure the Payment Obligations as described in Section 4.1 hereof.
(xvii) The Bank shall be reasonably satisfied that, in connection with the preparation, issuance, execution, delivery and filing of this Agreement, the Notes and the other Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer the fee of the BorrowerCalifornia Debt and Investment Advisory Commission, if any, shall have been paid and that payment will be made to the Bank promptly after demand therefor after the Effective Date of fees and disbursements of the Bank’s counsel (for disbursement by the Bank to its counsel).
(exviii) All other legal matters pertaining to the execution and delivery of each of the Loan Documents and the adoption and implementation of the Resolution shall be reasonably satisfactory to the Bank and its counsel.
(xix) The Administrative Agent Bank shall have received on evidence that all required filings with the California Debt and Investment Advisory Commission have been or before will be made.
(xx) The Bank shall have received a certificate of the Effective DateAgency, each dated on or, as applicable, prior to such date:
that (i) A good standing certificate or similar certificate dated a date reasonably close the Existing Agreement is no longer in effect and that all Payment Obligations owing to the Effective Date from the jurisdiction of formation Bank of the Borrower;
West under the Existing Agreement have been paid in full and (ii) A customary certificate evidence that the Existing Note has been terminated.
(xxi) The Bank shall have received such other documents, certificates, opinions (including reliance letters), approvals (and if requested by the Bank, certified duplicates of executed copies of such approvals) and filings with respect to this Agreement, the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement Notes and the other documents to be delivered by Loan Documents as the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Bank may reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionBank.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Effective Date. This Agreement shall become effective The agreement of each Lender to make Term Loans on the Effective Date is subject to the satisfaction or waiver by the Administrative Agent and as the Required Lenders, prior to or substantially concurrently with the making of the first date Term Loans on which the Effective Date, of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):precedent:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either the following:
(i) a counterpart this Agreement, dated as of this Agreement the Effective Date, duly executed and delivered by each Loan Party and the other Loan Documents signed on behalf of such parties party or hereto.
(ii) written evidence reasonably satisfactory to the Administrative Agent Security Agreement dated as of the Effective Date, duly executed and delivered by each of the Loan Parties party thereto.
(which may include .pdf or facsimile transmission iii) the Pledge Agreement, dated as of a signed signature page the Effective Date, duly executed and delivered by each of this Agreement) that the Loan Parties party thereto, pledging all of the issued and outstanding Equity Interests of each Subsidiary of each such party has signed a counterpart of this AgreementLoan Party.
(b) [ReservedThe Chapter 11 Cases shall have been commenced in the Bankruptcy Court and all of the First Day Orders shall have been entered by the Bankruptcy Court and such orders and all related pleadings shall be in form and substance satisfactory to the Required Lenders and consistent with the Approved Budget.]
(c) [Reserved.]
The Interim DIP Financing Order shall have been entered by the Bankruptcy Court within three (d3) The Business Days of the Petition Date and the Administrative Agent shall have received on a true and complete copy of such order, and such order shall be in the form of Exhibit C hereto (with modifications thereto as may be agreed to in writing by the Required Lenders in their sole discretion), be in full force and effect and shall not have been reversed, modified, amended, stayed or before the Effective Date, one or more certificates vacated absent prior written consent of the Borrower signed by a Responsible Officer:Administrative Agent and the Required L▇▇▇▇▇▇.
(id) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties No order shall have been true entered appointing a trustee, examiner or receiver (or local law equivalent) with respect to any of the Loan Parties’ or their respective Subsidiaries’ business, properties or assets, and correct in all material respects as of no motion shall be pending seeking any such earlier date and except where such representations and warranties expressly relate relief.
(e) The Borrower shall have paid to the Closing DateAdministrative Agent and the Lenders, the fees, costs and expenses then earned, due and payable under the Loan Documents (including, without limitation, the fees, costs and expenses of counsel and the other advisors to the Administrative Agent and the Lenders incurred in which case such representations connection with the Chapter 11 Cases and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-lawsnegotiation, certified in each instance by its Secretarypreparation, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion).
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by certificate of a Responsible Officer as of the Borrower, dated the Effective Date, attaching and certifying true and complete, of:
complete copies of (i) documents relating to the Agreed Form organization, existence and good standing of Scheme Press Announcementeach Loan Party as the Administrative Agent may reasonably request; and
(ii) specimen signatures evidencing the executed Transaction Agreement.identity, authority and capacity of each Responsible Officer authorized to act on behalf of a Loan Party in connection with the Loan Documents and the transactions contemplated thereby, and (iii) resolutions of each of the Loan Parties, duly adopted by the Board of Directors (or equivalent body in the jurisdiction of such Loan Party) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which it is a party or any other document delivered in connection herewith on the Effective Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(g) The Administrative Agent, for its benefit and the benefit of each other Secured Party, shall have been granted a perfected lien on the Collateral by the Interim DIP Financing Order on the terms and conditions and, with the requisite priority, set forth herein and in the other Loan Documents. The Collateral Documents and the Interim DIP Financing Order, upon entry thereof and subject to the terms thereof, shall be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, legal, valid, enforceable and perfected Liens on and security interests in the Collateral. The Loan Parties shall have delivered UCC financing statements, in suitable form for filing, and shall have made arrangements for the filing thereof that are acceptable to the Administrative Agent and the Required Lenders.
(h) The Administrative Agent shall have receivedreceived the Approved Budget in form and substance acceptable to the Required Lenders in their sole discretion, it being understood that the budget attached to the form of Interim DIP Financing Order attached hereto as Exhibit C is an Approved Budget.
(i) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower on behalf of the Loan Parties certifying that (x) the conditions in this Section 5.01 have been satisfied and (y) either (i) all authorizations or approvals of any Governmental Authority and approvals or consents of any other Person, required in connection with the Loan Documents shall have been obtained, or (ii) that no such authorizations, approvals, and consents are so required.
(j) Since December 31, 2022, there has not occurred any event, occurrence, effect, fact, condition, change or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(k) There shall exist no action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Chapter 11 Cases and any action, suit, investigation or proceeding arising from the commencement and continuation of the Chapter 11 Cases or the consequences that would normally result from the commencement and continuation of the Chapter 11 Cases) that is not stayed and could reasonably be expected to result in a Material Adverse Effect.
(l) Upon entry of the Interim DIP Financing Order, all necessary governmental and third party consents and approvals necessary in connection with this Agreement and the transactions contemplated hereby shall have been obtained (without the imposition of any materially adverse conditions that are not acceptable to the Required Lenders in their sole discretion) and shall remain in effect; and the making of the loans under this Agreement shall not violate any material applicable requirement of law and shall not be enjoined temporarily, preliminarily or permanently.
(m) The Administrative Agent shall have received at least 3 two (2) Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Date all documentation and other information about the Loan Parties as has been reasonably requested in writing at least three (3) days prior to the Effective Date by the Administrative Agent that it reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower PATRIOT Act and the Lenders Proceeds of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalCrime Act.
Appears in 1 contract
Sources: Term Loan Credit Agreement (RVL Pharmaceuticals PLC)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date (such date, the “Effective Date”) when each of the first date on which the following conditions precedent have been is satisfied (or waived) in accordance with the terms herein:
4.1 The Administrative Agent and the Lenders, shall have received (a) reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under Section 12.03 of the Credit Agreement in connection with this Agreement (including, the fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent) and (b) a consent fee payable to the Administrative Agent acting reasonably in assessing whether for the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from account of each party hereto either (i) Lender that executes and delivers a signed counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory prior to the Administrative Agent Effective Date (which may include .pdf or facsimile transmission each such Lender, a “Consenting Lender”) in an amount equal to 0.175% of a signed signature page each such Consenting Lender’s pro rata share of this Agreement) that such party has signed a counterpart of this Agreementthe Borrowing Base in effect immediately prior to the Effective Date.
(b) [Reserved.]
(c) [Reserved.]
(d) 4.2 The Administrative Agent shall have received from the Borrower, each Guarantor, and the Lenders constituting the Majority Lenders, counterparts of this Agreement signed on or before behalf of such Persons.
4.3 As of the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
after giving effect to this Agreement, (ia) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained of each Loan Party set forth in Article 4 the Credit Agreement and in each other Loan Document are true and correct in all material respects on (unless already qualified by materiality in which case such applicable representation and as of warranty shall be true and correct), except to the Effective Date (except where extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such earlier date and except where such representations (b) no Default, Event of Default or Borrowing Base Deficiency has occurred and warranties expressly relate is continuing. Each party hereto hereby authorizes and directs the Administrative Agent to declare the Closing Date, in which case such representations and warranties shall not be required this Agreement to be made on the Effective Date); and
effective (iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from shall occur) when it has received documents confirming or certifying, to the jurisdiction reasonable satisfaction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent, compliance with the conditions set forth in this Section 4. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent Such declaration shall have received a copybe final, certified by the Borrower conclusive and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior binding upon all parties to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Credit Agreement for all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalpurposes.
Appears in 1 contract
Sources: Fourth Amendment and Waiver to Second Amended and Restated Credit Agreement (Lilis Energy, Inc.)
Conditions Precedent to Effective Date. This The Effective Date of this Agreement shall become effective on and as is subject to the satisfaction of the first date on which the following conditions precedent have been satisfied (before or concurrently with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):Effective Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates day of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on initial Borrowing the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Datefollowing, each dated on orsuch day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as applicable, prior to such datewhich one original of each shall be sufficient) in sufficient copies for each Lender:
(i) A good standing certificate or similar certificate dated a date reasonably close Note duly executed by the Borrower and payable to the Effective Date from order of each Lender that has requested the jurisdiction of formation of the Borrower;same.
(ii) A customary certificate of This Agreement, the SecretarySecurity Agreement, Assistant Secretary and the Deposit Account Control Agreements, in each case, duly executed by the Loan Parties party hereto or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement thereto and the other documents parties hereto and thereto, as applicable, together with:
(A) acknowledgment copies of proper financing statements, duly filed on or before the day of the initial Borrowing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to be delivered perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(B) completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Borrower hereunder; andAdministrative Agent that name any Loan Party as debtor, together with copies of such financing statements,
(iiiC) A favorable opinion letter evidence of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(D) certified copies of the “Assigned Agreements” referred to in the Security Agreement (which shall include, without limitation, the Management Contracts (other than the Excluded Management Contracts) and all amendments thereto entered into on or before the Closing Date), together with a consent to such assignment from each party to such Assigned Agreements that is a Subsidiary or Affiliate of a Loan Party (other than the Loan Parties), in substantially the form of Exhibit C to the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.,
(fE) The certificated Equity Interests in each direct and indirect Subsidiary that owns or leases any Collateral and stock powers and membership interest powers (as the case may be) with respect thereto executed in blank, all in form and substance acceptable to the Administrative Agent shall have received a copyAgent, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(iiF) evidence that all other actions that the executed Transaction Agreement.
(g) The Collateral Agent and/or the Administrative Agent shall may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement have receivedbeen taken (including, at least 3 Business Days prior to the Effective Datewithout limitation, so long as requested no less than 10 Business Days prior to the Effective Datereceipt of duly executed payoff letters, all documentation UCC termination statements, consents and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lendersconfirmations), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Sources: Credit Agreement (RMR Group Inc.)
Conditions Precedent to Effective Date. This Agreement The Amendment No. 6 shall become be effective on and as of the first Effective Date, which date on shall be the date upon which all of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been shall be satisfied) (or waived by the Required Lenders)::
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received copies of this Amending Agreement No. 6 executed by the Borrower, the Guarantor, the Administrative Agent, and the Administrative Agent on or before the Effective Date, one or more certificates behalf of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective DateMajority Lenders;
(iib) Certifying that the representations and warranties contained Borrower shall have undertaken to deliver to the Administrative Agent within a period satisfactory to the Administrative Agent, and, in Article 4 are true and correct in all material respects on and as any event, before closing of the Effective Date (except where such representations HCN Offering, a confirmation of guarantees and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies security by each of the Borrower’s charter , the Guarantor and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Global Group Entity in form and substance reasonably satisfactory to the Administrative Agent. The ;
(c) the Borrower hereby requests such counsel shall have undertaken to deliver to the Administrative Agent within a period satisfactory to the Administrative Agent, and, in any event, before closing of the HCN Offering, a certified copy of (i) the charter documents and by-laws of the Borrower and the Guarantor; (ii) the resolutions of the board of directors (or any duly authorized committee thereof) of the Borrower approving this Amending Agreement No. 6 and the completion of all transactions contemplated thereunder; and (iii) all other instruments evidencing necessary corporate action of the Borrower and the Guarantor and of any required Authorization with respect to such opinion.matters;
(d) the Borrower shall have undertaken to deliver to the Administrative Agent within a period satisfactory to the Administrative Agent, and, in any event, before closing of the HCN Offering, a certificate of the secretary or an assistant secretary of the Borrower and of the Guarantor certifying the names and true signatures of its respective officers authorized to sign this Amending Agreement No. 6 manually or by mechanical means;
(e) the Borrower shall have undertaken to deliver to the Administrative Agent within a period satisfactory to the Administrative Agent, and, in any event, before closing of the HCN Offering, certificates of compliance with respect to the Borrower and the Guarantor issued by Industry Canada;
(f) The the Borrower shall have undertaken to deliver to the Administrative Agent shall have received within a copyperiod satisfactory to the Administrative Agent, certified by and, in any event, before closing of the HCN Offering, favourable opinions of counsel to the Borrower and signed the Guarantor concerning corporate existence of the Borrower and the Guarantor, due authorization, execution and enforceability of this Amending Agreement No. 6 and such as other matters as may reasonably be required by a Responsible Officer as true and complete, of:
(i) legal counsel to the Agreed Form of Scheme Press AnnouncementAdministrative Agent; and
(iig) the executed Transaction Agreement.
(g) The Borrower shall have undertaken to deliver to the Administrative Agent shall have received, at least 3 Business Days prior within a period satisfactory to the Effective DateAdministrative Agent, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Actand, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders any event, before closing of the Effective Date in writing promptly upon HCN Offering, such conditions precedent being satisfied (or waived by the Required Lenders), other certificates and such notice shall be conclusive, binding and finaldocumentation as it may reasonably request.
Appears in 1 contract
Sources: Senior Secured Credit Facilities (Canwest Media Inc)
Conditions Precedent to Effective Date. This Notwithstanding the execution and delivery of this Agreement by all parties hereto, the Existing Credit Agreement shall become effective remain in full force and effect and shall not be amended and restated hereby unless and until the Effective Date occurs. The effectiveness of the amendment and restatement of the Existing Credit Agreement to be effected by this Agreement, and the obligation of each Term Loan Lender to make the Term Loan Advances, and of the Working Capital Lenders to make any Working Capital Advances, on the Effective Date, shall occur on the Effective Date and shall be subject to the conditions precedent (each to be satisfied in form and substance satisfactory to the Administrative Agent) that:
(a) The Reorganization, including all of the terms and conditions thereof, shall have been duly approved by the board of directors of the Parent Borrower and duly approved (if required by applicable law) by the Board of Directors and the shareholders of all other parties thereto or affected thereby, and all Reorganization Documents shall have been duly executed and delivered by the Parent Borrower and the other parties thereto and shall be in full force and effect. The representations and warranties set forth in the Reorganization Documents shall be true and correct in all material respects as if made on and as of the first date on Effective Date, except to the extent that such representations and warranties are stated to relate to a specific earlier date, in which the following conditions precedent case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(b) The Reorganization shall have been satisfied (consummated on and as of May 21, 1999 strictly in accordance with the Administrative Agent acting reasonably terms of the Reorganization Documents and all applicable laws, rules and regulations. On and as of the Effective Date, the Reorganization shall remain consummated and in assessing full force and effect and shall not be the subject of any attack, other complaint or question by the stockholders of Holdings, the Parent Borrower or any other Loan Party, the SEC (or any similar state or foreign governmental agency or body) or any other Person (whether the conditions precedent domestic or foreign).
(c) The Parent Borrower Charter Amendment shall have been satisfied) (or waived duly approved by the Required Lenders):board of directors and stockholders of both Holdings and the Parent Borrower and all Parent Borrower Charter Amendment Documents shall have been duly adopted or executed and delivered, as applicable, by all relevant Persons and shall be in full force and effect. The representations and warranties set forth in the Parent Borrower Charter Amendment Documents shall be true and correct in all material respects as if made on and as of the Effective Date, except to the extent that such representations and warranties are stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.
(ad) The Administrative Agent (or its counsel) Parent Borrower Charter Amendment shall have received from each party hereto either been effectuated and all necessary filings and other actions in connection therewith under the DGCL and all other applicable laws, rules and regulations shall have been made or taken, as the case may be. On and as of the Effective Date, the Parent Borrower Charter shall include the Parent Borrower Charter Amendment and otherwise shall be in form and substance identical to Exhibit F hereto. None of the foregoing shall be the subject of any attack, other complaint or question by the stockholders of Holdings, the Parent Borrower or any other Loan Party, the SEC or any other Person (iwhether domestic or foreign).
(e) a counterpart of this Agreement Holdings and the Parent Borrower shall have effectuated their worldwide corporate reorganization on the terms previously described to the Agents and Lenders (the "CORPORATE REORGANIZATION") and the corporate structure of Holdings, the Parent Borrower and its Subsidiaries shall be precisely as set forth in Exhibit K hereto. The Corporate Reorganization shall have been effectuated pursuant to agreements, instruments and other Loan Documents signed on behalf of such party or (ii) written evidence reasonably documentation in form and substance satisfactory to the Administrative Agent (which may include .pdf the "CORPORATE REORGANIZATION DOCUMENTS") and in compliance with all applicable domestic and foreign laws, rules and regulations and other legal requirements. The Corporate Reorganization shall not be the subject of any attack, other complaint or facsimile transmission question by the stockholders of a signed signature page of this AgreementHoldings, the Parent Borrower or any other Loan Party, the SEC (or any similar state or foreign governmental agency or body) that such party has signed a counterpart of this Agreementor any other Person (whether domestic or foreign).
(bf) [ReservedThe Administrative Agent, the Collateral Agent and the Lender Parties shall be satisfied with the corporate and legal structure, ownership and capitalization of each Loan Party and each of its Subsidiaries, including the terms and conditions of the charter (including, without limitation, the Parent Borrower Charter, as amended by the Parent Borrower Charter Amendment), bylaws and other governing documents, and each class of capital stock, of each Loan Party and each such Subsidiary and of each agreement, instrument or other document relating to such structure, ownership or capitalization.]
(cg) [ReservedThere shall have occurred no Material Adverse Change since September 30, 1998.]
(dh) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the best of Holdings' or either Borrower's knowledge, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of the Reorganization, the Parent Borrower Charter Amendment, the Corporate Reorganization, the Effective Date Transactions, any Loan Document or any Related Document.
(i) Nothing shall have come to the attention of the Administrative Agent, the Collateral Agent or the Lender Parties to lead them to believe (i) that the information relating to the Loan Parties furnished to the Administrative Agent, the Collateral Agent or the Lender Parties prior to the Effective Date was or has become misleading, incorrect or incomplete in any material respect, (ii) that any Loan Party or any of its Subsidiaries would not have good and marketable title to all material assets of such Loan Party and its Subsidiaries reflected in the information relating to the Loan Parties furnished to the Administrative Agent, the Collateral Agent or the Lender Parties prior to the Effective Date or (iii) that the Reorganization, the Parent Borrower Charter Amendment, the Corporate Reorganization or the Effective Date Transactions, will, individually or in the aggregate, have a Material Adverse Effect; without limiting the generality of the foregoing, the Administrative Agent, the Collateral Agent and the Lender Parties shall have been given such access to the management, records, books of account, contracts and properties of each Loan Party and its Subsidiaries as they shall have requested.
(j) All accrued costs, fees and expenses of the Agents and the Lender Parties to the extent due shall have been paid (including the accrued costs, fees and expenses of counsel (including local and foreign counsel) to the Agents).
(k) The Administrative Agent, the Collateral Agent and the Lender Parties shall be satisfied that (i) all requisite governmental and other third party licenses, permits, approvals and consents necessary in connection with and for the consummation of the Reorganization, the Parent Borrower Charter Amendment, the Corporate Reorganization and the Effective Date Transactions, shall have been obtained (without the imposition of any conditions that are not acceptable to the Administrative Agent, the Collateral Agent and the Lender Parties) and remain in effect, and all applicable appeal periods and all applicable waiting periods, if any, in connection with any of the Reorganization, the Parent Borrower Charter Amendment, the Corporate Reorganization or the Effective Date Transactions shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the judgment of the Administrative Agent, the Collateral Agent or the Lender Parties, in each case, that restrains, prevents or imposes adverse conditions upon the consummation of any of the Reorganization, the Parent Borrower Charter Amendment, the Corporate Reorganization and the Effective Date Transactions or the rights of the Loan Parties or their Subsidiaries freely to the transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them and (ii) the Effective Date Transactions shall be in full compliance with all legal and regulatory requirements, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.
(l) Lenders, other than GE Capital, shall have committed to provide, on terms acceptable to GE Capital, Commitments equal to at least $40,000,000, comprised of Term Loan Commitments equal to at least $12,307,693 and Working Capital Commitments equal to at least $27,692,307.
(m) The Administrative Agent shall have received on or before the Effective DateDate the following, one or more certificates of each dated such day (unless otherwise specified), in form and substance satisfactory to the Borrower signed by a Responsible OfficerAdministrative Agent, the Collateral Agent and the Lender Parties, unless otherwise specified, and (except for the Notes) in sufficient copies for each Lender Party:
(i) Certifying The Notes payable to the order of the Lenders.
(ii) Certified copies of (A) the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party that no Default is a party thereto approving the Reorganization, the Corporate Reorganization, the Parent Borrower Charter Amendment, the Effective Date Transactions, each Loan Document and, to the extent that a certified copy of such resolutions has not been previously delivered, each Related Document to which it is or Event is to be a party, (B) the resolutions and other corporate actions of Default the stockholders of Holdings and the Parent Borrower approving the Parent Borrower Charter Amendment, as applicable and (C) all documents evidencing other necessary or desirable corporate action and governmental and other third party approvals and consents with respect to the Reorganization, the Corporate Reorganization, the Parent Borrower Charter Amendment and the Effective Date Transactions, each Loan Document and each Related Document to which it is or is to be a party.
(iii) A copy of a certificate of the Secretary of State or other appropriate domestic or foreign governmental official of the jurisdiction of incorporation of each Loan Party other than the Hong Kong Subsidiaries, dated reasonably near the Effective Date, certifying, where applicable, (A) as to a true and correct copy of the charter or other constitutive document of such Loan Party and each amendment thereto on file in that office and (B) that (1) such amendments are the only amendments to such Loan Party's charter or other constitutive document on file in that office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation.
(iv) A copy of a certificate of the Hong Kong Registrar of Companies dated reasonably near the Effective Date, certifying that each of the Hong Kong Subsidiaries is presently on the Register.
(v) A copy of a certificate of the Secretary of State or other appropriate domestic or foreign governmental official in all jurisdictions in which any Loan Party is qualified to do business as a foreign corporation, in each case, dated reasonably near the Effective Date, stating that such Loan Party is duly qualified and in good standing as a foreign corporation in such State or other jurisdiction and has filed all annual reports required to be filed to the date of such certificate.
(vi) Certified copies of a certificate of merger or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Administrative Agent, the Collateral Agent and the Lender Parties of the consummation and effectiveness of the Reorganization and that the Reorganization remains consummated and effective on and as of the Effective Date.
(vii) Certified copies of a certificate of amendment or other confirmation from the Secretary of State of the State of Delaware satisfactory to the Administrative Agent, the Collateral Agent and the Lender Parties of the ratification and effectiveness of the Parent Borrower Charter Amendment and that the Parent Borrower Charter Amendment remains effective on and as of the Effective Date.
(viii) A certificate of each Loan Party, signed on behalf of such Loan Party by its Chief Financial Officer or any Vice President or, in the case of any Foreign Subsidiary, a Director and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall have occurred be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or would occur other constituent and be continuing governing documents of such Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(m)(iii), (B) a true and correct copy of the bylaws of such Loan Party as in effect on the date on which the resolutions referred to in 3.01(m)(ii) were adopted and on the Effective Date;
, (iiC) Certifying that the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in Article 4 are true the Loan Documents, Reorganization Documents, Corporate Reorganization Documents and correct in all material respects Parent Borrower Charter Amendment Documents as though made on and as of the Effective Date and (except where such representations E) the absence of any event occurring and warranties expressly relate to an earlier datecontinuing, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to or resulting from the Closing DateReorganization, in which case such representations and warranties shall not be required to be made on the Parent Borrower Charter Amendment, the Corporate Reorganization or the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-lawsDate Transactions, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrowerthat constitutes a Default.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(iix) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Secretary or an Assistant Secretary or another Responsible Officer of the Borrower each Loan Party certifying the names and true signatures of the Borrower’s officers of such Loan Party authorized to sign this Agreement each Loan Document and each Related Document (dated on or after May 1, 1999) to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) An amended and restated security agreement in substantially the form of Exhibit D hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 5.01(o), in each case as amended (including, without limitation, amended and restated), supplemented or otherwise modified from time to time in accordance with its terms, the "SECURITY AGREEMENT"), duly executed by Holdings, each Borrower, each Domestic Guarantor and IPC Canada, together with:
(A) to the extent not already held by the Borrower hereunder; andAdministrative Agent, certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank and instruments, including, without limitation, the Intercompany Notes, evidencing the Pledged Debt referred to therein indorsed in blank,
(iiiB) A favorable opinion letter executed copies of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Uniform Commercial Code financing statements, to be filed under the Uniform Commercial Code of all additional jurisdictions that the Administrative Agent may deem necessary or desirable in form order to perfect and substance reasonably satisfactory protect, and continue to perfect and protect, the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) completed requests for information, dated on or before the Effective Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) to the extent not previously delivered to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the duly executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders copies of the Effective Date Collateral Assignments referred to in writing promptly upon such conditions precedent being satisfied (the Security Agreement and evidence of the completion of all recordings and filings of or waived by the Required Lenders), and such notice shall be conclusive, binding and final.with
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The obligations of the first date on which Lender to extend the Existing Commitment Expiration Date, amend and restate the Existing Credit Agreement and to make the Commitment available hereunder shall be subject to the fulfillment of each of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of Date in a manner satisfactory to the Borrower signed by a Responsible OfficerLender:
(i) Certifying that no Default or Event of Default The Lender shall have occurred or would occur received the following documents, each dated and be continuing in form and substance as is satisfactory to the Lender:
(A) copies of the resolution(s) of the Board of Directors of the Authority approving the execution and delivery of this Agreement, the Notes and the Third Supplemental Subordinate Trust Agreement certified by the Board Secretary of the Authority as being true and complete and in full force and effect on the Effective Date;
(iiB) Certifying that the representations certified copies of all approvals, authorizations and warranties contained in Article 4 are true and correct in all material respects on and as consents of any trustee, or holder of any indebtedness or obligation of the Effective Date Authority or any Governmental Authority necessary for the Authority to enter into each of the Related Documents and the transactions contemplated herein and therein;
(except where C) the audited annual financial statements of the Authority for the Fiscal Year ended June 30, 2017, and a copy of the most recent budget of the Authority (such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required requirement to be made satisfied if such information is available on the Effective DateAuthority’s website); and
(iiiD) Enclosing:
(A) Copies a certificate of an Authorized Representative of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each Authority dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from certifying as to the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretaryauthority, Assistant Secretary or another Responsible Officer of the Borrower certifying the names incumbency and true specimen signatures of the Borrower’s officers Designated Representatives authorized to sign this Agreement Agreement, the Notes and the any other documents to be delivered by it hereunder and who will be authorized to represent the Borrower hereunderAuthority in connection with this Agreement, upon which the Lender may rely until it receives a new such certificate;
(E) an executed original or certified copy, as applicable, of each of the Related Documents;
(F) the original executed Notes;
(G) an IRS Form W-9 duly completed by the Authority; and
(H) evidence that a CUSIP number has been obtained and reserved from S&P’s CUSIP Service for each of the Tax-Exempt LIBOR Note and the Taxable Note.
(ii) The Lender shall have received a written description of all actions, suits or proceedings pending or threatened against the Authority in any court or before any arbitrator of any kind or before or by any governmental or non-governmental body which could reasonably be expected to result in a material adverse effect on the Authority’s ability to perform is obligation under this Agreement and the other Related Documents, if any, and such other statements, certificates, agreements, documents and information with respect thereto as the Lender may reasonably request. There shall not have occurred any change or any development involving a prospective change in the financial or operating condition of the Authority or its ability to pay the Obligations from that set forth in the audited annual financial statements of the Authority for the Fiscal Year ended June 30, 2015 provided to the Lender, that in the judgment of the Lender is material or adverse to the Lender. No law, regulation, ruling or other action of the United States, the State of California or the State of New York or any political subdivision or authority therein or thereof shall be in effect or shall have occurred, the effect of which would be to prevent the Authority or the Lender from fulfilling its respective obligations under this Agreement and the other Related Documents.
(iii) A favorable The Lender shall have received an opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP addressed to the Lender and dated the Effective Date from Authority Counsel (subject to such general assumptions and exclusions as required by Authority Counsel), in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests Lender and its counsel, which provides for, among other opinions, the following: (A) the Authority is a county transportation commission duly organized and validly existing under the laws of the State, (B) the execution, delivery and performance by the Authority of this Agreement, the Notes and the other Related Documents are within the Authority’s powers, have been duly authorized by all necessary action, and require no action by or in respect of, or filing with, any governmental body, agency or official that has not been accomplished, (C) this Agreement, the Notes and the other Related Documents have been duly authorized, executed and delivered and are valid, binding and enforceable against the Authority, and (D) such counsel other matters as the Lender may reasonably request, in form and substance satisfactory to deliver such opinionthe Lender and its counsel.
(fiv) The Administrative Agent following statements shall be true and correct on the Effective Date, and the Lender shall have received a copy, certified by the Borrower and certificate signed by a Responsible Officer as Designated Representative, dated the Effective Date, certifying that: (A) the representations and warranties of the Authority contained in each of the Related Documents and each certificate, letter, other writing or instrument delivered by the Authority to the Lender pursuant hereto or thereto are true and complete, of:
correct on and as of the Effective Date as though made on and as of such date; (iB) no Default or Event of Default has occurred and is continuing or would result from the Authority’s execution and delivery of this Agreement or the Notes or the acceptance of the Commitment by the Authority; (C) the Agreed Form audited annual financial statements of Scheme Press Announcementthe Authority for the Fiscal Year ended June 30, 2017, including the balance sheet as of such date of said period, all examined and reported on by ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as heretofore delivered to the Lender correctly and fairly present the financial condition of the Authority as of said date and the results of the operations of the Authority for such period, have been prepared in accordance with GAAP consistently applied except as stated in the notes thereto; and
(iiD) since the executed Transaction Agreement.
(g) The Administrative Agent shall have receivedrelease of the audited annual financial statements of the Authority for the Fiscal Year ended June 30, at least 3 Business Days 2017, no material adverse change has occurred in the financial condition of the Authority prior to the Effective Date, so long and on and prior to the Effective Date no material transactions or obligations (not in the ordinary course of business) shall have been entered into by the Authority, other than as requested no less than 10 Business Days previously advised in writing to the Lender; (E) the acceptance of the Commitment by the Authority pursuant to this Agreement is an arm’s length commercial transaction between the Authority and the Lender; (F) the Authority has consulted with its own respective legal and financial advisors in connection with the acceptance of the Commitment by the Authority pursuant to this Agreement; (G) the Lender has not acted as a fiduciary in favor of the Authority with respect to the Notes or the acceptance of the Commitment by the Authority; and (H) to the best knowledge of the Authority, the underlying unenhanced long-term ratings assigned to the Senior ▇▇▇▇ ▇▇▇▇▇ by ▇▇▇▇▇’▇ and S&P have not been reduced, withdrawn or suspended since the dated date of the Rating Documentation.
(v) The Lender shall have received an opinion addressed to the Lender and dated the Effective Date of Bond Counsel as to the due authorization, execution and delivery of this Agreement and the Notes, and as to the validity and enforceability with respect to the Authority of this Agreement, the Notes, the Subordinate Trust Agreement, the Second Supplemental Subordinate Trust Agreement and the Third Supplemental Subordinate Trust Agreement, the exclusion of interest on the Tax-Exempt Loans from gross income for federal income tax purposes of the Lender, the pledge of Net Pledged Revenues securing the Notes and the Obligations constituting a valid pledge, and such other matters as the Lender may reasonably request, in form and substance satisfactory to the Lender and its counsel.
(vi) All necessary action on the part of the Authority shall have been taken as required for the assignment and pledge of a lien on the Net Pledged Revenues for the benefit of the Lender as described in Section 5.01 hereof.
(vii) All other legal matters pertaining to the execution and delivery of this Agreement, the Notes and the Third Supplemental Subordinate Trust Agreement shall be satisfactory to the Lender and its counsel. The Lender shall have received evidence satisfactory to the Lender that all conditions precedent to the issuance of the Notes as Subordinate Obligations pursuant to Section 2.09 of the Subordinate Trust Agreement have been satisfied.
(viii) The Lender shall have received evidence from Moody’s and S&P confirming that the underlying unenhanced long-term rating assigned to the Senior ▇▇▇▇ ▇▇▇▇▇ by ▇▇▇▇▇’▇ is at least “Aa2” (or its equivalent), and “AA+” (or its equivalent) by S&P (referred to herein as the “Rating Documentation”).
(ix) On or prior to the Effective Date, all documentation [(A)] the Lender shall have received reimbursement of the Lender’s fees and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, expenses (including the Patriot Actlegal fees and expenses of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP) and any other fees incurred in connection with the transaction contemplated by this Agreement due on the Effective Date, [and (B) all amounts due and owning under the Existing Credit Agreement shall have been paid in each case relating full to the BorrowerLender].
(x) Neither the Tax-Exempt LIBOR Note nor the Taxable Note shall be
(A) assigned a separate rating by any Rating Agency or (B) registered with The Depository Trust Company or any other securities depository. No offering document or official statement shall be prepared with respect to the Tax-Exempt LIBOR Note or the Taxable Note.
(xi) The Administrative Agent Lender shall notify have received such other documents, certificates, opinions, approvals and filings with respect to this Agreement, the Borrower Notes and the Lenders of other Related Documents as the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalLender may reasonably request.
Appears in 1 contract
Sources: Revolving Credit Agreement
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date (such date, the “Effective Date”) when each of the first date on which the following conditions precedent have been is satisfied (or waived) in accordance with the terms herein:
4.1 The Administrative Agent and the Lenders, shall have received (a) reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under Section 12.03 of the Credit Agreement in connection with this Agreement (including, the fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent) and (b) a consent fee payable to the Administrative Agent acting reasonably in assessing whether for the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from account of each party hereto either (i) Lender that executes and delivers a signed counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory prior to the Administrative Agent Effective Date (which may include .pdf or facsimile transmission each such Lender, a “Consenting Lender”) in an amount equal to 0.15% of a signed signature page each such Consenting Lender’s pro rata share of this Agreement) that such party has signed a counterpart of this Agreement.the Borrowing Base in effect immediately prior to the Effective Date;
(b) [Reserved.]
(c) [Reserved.]
(d) 4.2 The Administrative Agent shall have received from the Borrower, each Guarantor, and the Lenders constituting the Majority Lenders, counterparts of this Agreement signed on or before behalf of such Persons.
4.3 As of the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
after giving effect to this Agreement, (ia) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained of each Loan Party set forth in Article 4 the Credit Agreement and in each other Loan Document are true and correct in all material respects on (unless already qualified by materiality in which case such applicable representation and as of warranty shall be true and correct), except to the Effective Date (except where extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such earlier date and except where such representations (b) no Default, Event of Default or Borrowing Base Deficiency has occurred and warranties expressly relate is continuing. Each party hereto hereby authorizes and directs the Administrative Agent to declare the Closing Date, in which case such representations and warranties shall not be required this Agreement to be made on the Effective Date); and
effective (iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from shall occur) when it has received documents confirming or certifying, to the jurisdiction reasonable satisfaction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent, 007870-0083-Active.30486203.9 compliance with the conditions set forth in this Section 4. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent Such declaration shall have received a copybe final, certified by the Borrower conclusive and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior binding upon all parties to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Credit Agreement for all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalpurposes.
Appears in 1 contract
Sources: Second Amendment and Waiver to Second Amended and Restated Credit Agreement (Lilis Energy, Inc.)
Conditions Precedent to Effective Date. This The amendment and restatement of the Existing Credit Agreement pursuant to this Agreement shall become effective on and as the date that all of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 8.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such each party hereto or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile electronic transmission of a signed signature page of this Agreement) that such each party hereto has signed a counterpart of this Agreement, together with a Note executed by the Borrower with respect to each Lender that has requested the same pursuant to Section 2.20 at least 5 Business Days prior to the Effective Date.
(b) [ReservedThe Administrative Agent shall have received certified copies of the resolutions of the Board of Directors of the Borrower approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and the Notes.]
(c) [ReservedThe Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the Borrower’s certificate of incorporation and by-laws and certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes.]
(d) The Administrative Agent shall have received on or before a certificate from the Effective Date, one or more certificates Secretary of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event State of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and New Jersey dated as of a date reasonably close to the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as date of such earlier date and except where such representations and warranties expressly relate effectiveness as to the Closing Date, in which case such representations good standing of and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance documents filed by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close customary favorable opinion of counsel to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory acceptable to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 three Business Days prior to the Effective Date, so long as Date all documentation and other information regarding the Borrower required by bank regulatory authorities under applicable "know-your-customer" and Anti-Money Laundering Laws to the extent reasonably requested no less than at least 10 Business Days prior to the Effective DateDate including, all documentation and other information required by regulatory authorities under applicable to the extent the Borrower qualifies as a “know your legal entity customer” under the Beneficial Ownership Regulation, delivery of a Beneficial Ownership Certification in relation to the Borrower to any Lender that has requested such Beneficial Ownership Certification.
(g) All costs, fees, expenses (including, without limitation, legal fees and anti-money laundering rules expenses) to the extent invoiced at least two Business Days prior to the Effective Date and regulationsthe fees contemplated by the Fee Letters payable to the Arrangers, including the Patriot ActAdministrative Agent or the Lenders shall have been paid on or prior to the Effective Date, in each case relating case, to the Borrower. extent required by the Fee Letters or this Agreement to be paid on or prior to the Effective Date.
(h) The Administrative Agent shall notify the Borrower and the Lenders have received (in each case dated as of the Effective Date Date) (i) an officer’s certificate from the Borrower that the condition precedent contained in writing promptly upon such conditions precedent being Sections 3.01(i) and (j) have been satisfied (or waived by as of the Required Lenders)Effective Date, and such notice (ii) a Solvency Certificate from the chief financial officer or treasurer of the Borrower substantially in the form of Exhibit D hereto.
(i) The representations and warranties contained in Section 4.01 shall be conclusivetrue and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, binding in which case such representations and finalwarranties shall be true and correct in all respects) on and as of the Effective Date.
(j) On and as of the Effective Date, no event shall have occurred and be continuing which constitutes a Default or an Event of Default.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The occurrence of the first date on which Effective Date is subject to the following conditions condition precedent have been satisfied (with that the Administrative Agent acting reasonably shall have received in assessing whether form and substance satisfactory to the conditions precedent have been satisfied) (or waived Administrative Agent and all duly executed by the Required Lenders):parties thereto:
(a) The Administrative Agent (or its counsel) shall have received from respective Revolving Facility Notes made payable to each party hereto either (i) a counterpart of this Agreement Lender and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory Term Facility Note payable to the Administrative Agent Term Lender.
(which may include .pdf or facsimile transmission of a signed signature page of this b) An Amended and Restated Security Agreement.
(c) that such party has signed a counterpart An Amendment to the Intercreditor Agreement relating to the execution and delivery of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before A copy of the Effective Date, one or more certificates Articles of Incorporation of the Borrower signed certified by the Secretary of State of the state of its incorporation, and a Responsible Officer:copy of the Bylaws of the Borrower certified by its secretary.
(ie) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies Certified copies of the resolutions or similar authorizing documentation of the governing body Board of Directors of the Borrower approving the Borrowings contemplated hereby and authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any and of all documents evidencing other Responsible Officer of necessary corporate action and governmental approvals, if any, with respect to the BorrowerLoan Documents.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(if) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Secretary or an Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement the Loan Documents and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Evidence satisfactory to the Administrative Agent shall that security interests created by the Security Agreement in the Collateral have receivedbeen duly perfected by the taking of all such acts as may be necessary or advisable to create an attached, at least 3 Business Days prior fully perfected, first-priority security interest (subject to no liens other than Permitted Liens) to secure all obligations of the Borrower to the Effective Date, so long Lenders under this Agreement and the other Loan Documents.
(h) Certificates of good standing of a recent date for the Borrower from the Secretary of State of the state of its incorporation.
(i) A completed Year 2000 Questionnaire
(j) The facility fee due pursuant to Section 2.6(a)(i).
(k) Such other documents or instruments as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalmay reasonably request.
Appears in 1 contract
Sources: Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Effective Date. This Agreement The Lenders’ Commitments shall not become effective on and as hereunder unless all of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by in accordance with Section 8.01) on or prior to the Required Lenders):Commitment Termination Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such each party hereto or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile electronic transmission of a signed signature page of this Agreement) that such each party hereto has signed a counterpart of this Agreement.
(b) [ReservedCertified copies of the resolutions of the Board of Directors of the Borrower approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and the Notes.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on A certificate of the Secretary or before the Effective Date, one or more certificates an Assistant Secretary of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of certifying the Borrower’s charter certificate of incorporation and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution laws and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionNotes.
(fd) The Administrative Agent shall have received A certificate from the Secretary of State of New Jersey dated as of a copy, certified date reasonably close to the date of such effectiveness as to the good standing of and charter documents filed by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction AgreementBorrower.
(ge) The Administrative Agent shall have receivedAll costs, fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least 3 two Business Days prior to the Effective DateDate and the fees contemplated by the Fee Letters payable to the Arranger, so long as requested no less than 10 Business Days the Administrative Agent or the Lenders shall have been paid on or prior to the Effective Date, all documentation and other information in each case, to the extent required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating Fee Letters or this Agreement to be paid on or prior to the BorrowerEffective Date. The Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower and the Lenders of as to the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such notice shall be conclusive, binding conclusive and finalbinding.
Appears in 1 contract
Sources: 364 Day Bridge Term Loan Agreement (Becton Dickinson & Co)
Conditions Precedent to Effective Date. This Agreement Amendment shall become be effective on and as the date (the “Effective Date”) upon which Administrative Agent receives each of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):items:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart counterparts of this Agreement Amendment executed by the Company, Administrative Agent, and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.Lenders;
(b) [Reserved.]a restated Revolver Note payable to each Revolver Lender that so requests;
(c) [Reserved.]a restated Term Loan Note payable to each Term Loan Lender that so requests;
(d) The Administrative Agent shall have received the Guarantors’ Consent and Agreement executed by each Guarantor;
(e) payment of all fees payable on or before prior to the Effective Date, one or more certificates Date pursuant to the Credit Agreement and Fee Letter (as amended by that certain Fee Letter Amendment dated of even date hereof);
(f) a certificate of each Company dated as of the Borrower Effective Date signed by a Responsible Officer:
Officer of Borrower and each Guarantor (iA) Certifying that no Default certifying and attaching the resolutions adopted by each such entity approving or Event consenting to this Amendment, and (B) in the case of Default shall have occurred or would occur Borrower, certifying that, before and be continuing on the Effective Date;
after giving effect to this Amendment, (ii1) Certifying that the representations and warranties contained in Article 4 Section 8 of the Credit Agreement and the other Loan Papers are true and correct in all material respects on and as of the Effective Date (Date, except where to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case such representations and warranties shall have been they are true and correct in all material respects as of such earlier date date, and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii2) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary no Default or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions Potential Default exists or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date would result from the jurisdiction of formation of the Borrowerthis Amendment;
(iig) A customary certificate Legal opinions of in-house counsel to the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names Restricted Companies and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP ▇▇▇▇, LLP, special New York counsel to the Restricted Companies, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(iih) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior evidence that all conditions precedent to the Effective Dateconsummation of the Peak Resorts Acquisition other than the payment of consideration thereunder using the proceeds of the Term Loans and such other conditions that can only be satisfied substantially concurrently with the closing of the Peak Resorts Acquisition have been satisfied, so long as requested no less than 10 Business Days prior to together with executed copies of the Effective Date, all documentation Peak Resorts Acquisition Agreement and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Actany material agreement related thereto, in each case relating case, in form and substance satisfactory to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalits counsel.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied Each Lender’s obligation to commit to make (with the Administrative Agent acting reasonably in assessing whether but not fund) a Term Loan is subject to the conditions precedent that Administrative Agent and each Lender shall have been satisfied) received (or waived by the Required Lendersshall have consented to in writing waive), in form and substance reasonably satisfactory to Administrative Agent):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement, the Pledge Agreement, the IP Security Agreement, the Closing Date Acquisition Collateral Assignment Agreement and the such other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory as requested by Administrative Agent prior to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.Effective Date, each duly executed by each applicable Loan Party;
(b) [Reserved.reserved];
(c) [Reserved.]a completed Perfection Certificate for each of the Loan Parties (including Borrower and assuming the Closing Date Acquisition has been consummated in accordance with the terms of the Closing Date Acquisition Documents as of the Effective Date);
(d) The Administrative Agent shall have received on or before certified copies, dated as of date no earlier than thirty (30) days prior to the Effective Date, one of financing statement searches, as Administrative Agent shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or more certificates have been or will be terminated or released on or prior to the Closing Date;
(e) UCC financing statements for each appropriate jurisdiction as is necessary, in Administrative Agent’s discretion, to prefect Administrative Agent’s Lien in the Collateral;
(f) [reserved];
(g) [reserved];
(h) a duly executed legal opinion of counsel to each Loan Party dated as of the Borrower signed by a Responsible Officer:Effective Date in form and substance reasonably satisfactory to Administrative Agent;
(i) Certifying a payoff letter executed by each applicable financing source requested by Administrative Agent and required to be repaid on the Effective Date pursuant to the terms of this Agreement;
(j) a subordination agreement with each applicable financing source or holder of Indebtedness of any of the Loan Parties requested by Administrative Agent that is required to be subordinated to the Obligations pursuant to the terms of this Agreement;
(k) [reserved];
(l) the Organization Documents and good standing certificates of each Loan Party certified by the Secretary of State (or equivalent agency) of such Loan Party’s jurisdiction of organization or formation, each as of a date no earlier than thirty (30) days prior to the Effective Date;
(m) a copy of resolutions of the governing body for each Loan Party evidencing approval of the Term Loans and other transactions evidenced by the Loan Documents;
(n) duly executed officer’s certificates for each Loan Party certifying as to (i) the incumbency of each Responsible Officer executing each Loan Document and (ii) the documents delivered pursuant to Section 3.1(l) and 3.1(m), in a form reasonably acceptable to Administrative Agent;
(o) the representations and warranties set forth in Section 5 (other than Section 5.13) shall be true, accurate and complete in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respect after giving effect to such materiality qualification) as of the Effective Date provided, that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date;
(p) no Default or Event of Default shall have occurred or would occur exist;
(q) evidence reasonably satisfactory to Administrative Agent that all members, board of directors, governmental, shareholder, material third party consents and other approvals necessary in connection with entering into this Agreement and consummating each of the transactions contemplated hereby to be continuing consummated on the Effective DateDate have been obtained or waived;
(r) delivery of a duly authorized officer’s certificate, executed by each Loan Party, (i) certifying to matters set forth in clauses (o), (p) and (q) above and (ii) Certifying that certifying and attaching as to delivery to Administrative Agent of true, correct and complete copies of the representations Closing Date Acquisition Agreement and warranties contained in Article 4 are true and correct in all material respects on and each other Closing Date Acquisition Document executed prior to or as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Acquisition Agreement and the all exhibits thereto and each other documents to Closing Date Acquisition Document shall be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form form, scope and substance reasonably satisfactory to Administrative Agent)(it being acknowledged that Borrower may deliver the Administrative Agent. The Borrower hereby requests such counsel fully executed copies of the Closing Date Acquisition Agreement and each other Closing Date Acquisition Document to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the be executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days on or prior to the Effective Date, so long as requested no less than 10 Date and the forms of each of the exhibits thereto and other documents identified therein for which forms have been negotiated within five (5) Business Days prior of the Effective Date and Borrower hereby directs Administrative Agent to append such documents to the Effective Date, officer’s certificate identified in this clause (r));
(s) Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to Parent and its Subsidiaries under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating regulations and requested by Administrative Agent and Lenders at least five (5) Business Days prior to the Borrower. The Effective Date;
(t) such other documents, certificates, instruments, and affidavits as Administrative Agent requested prior to the Effective Date;
(u) receipt of confirmation by Administrative Agent that all costs, fees and expenses due to any affiliate of Administrative Agent under the Engagement Letter shall notify the Borrower and the Lenders of have been paid prior to the Effective Date hereof; and
(v) payment to Administrative Agent, for the account of Administrative Agent and the Lenders, of L▇▇▇▇▇▇’ Expenses as specified in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalSection 2.4 hereof.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The closing of the first date on which transactions contemplated by this Assignment (the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel"CLOSING DATE") shall have received from each party hereto either (i) a counterpart of this Agreement and occur at the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form ▇▇▇, or such other location as the parties hereto may mutually agree. Unless this Assignment is earlier terminated pursuant to Sections 1 or 7, the Closing Date shall occur as promptly as practicable, but no later than five (5) business days following the satisfaction or waiver by Assignee and substance reasonably satisfactory Assignor of the following conditions:
a. Ourway Realty and the manager and each member thereof shall have waived their respective rights of first refusal under the Operating Agreement with respect to the Administrative Agent. The Borrower hereby requests such counsel transfer of the Interest pursuant to deliver such opinionthis Agreement.
(f) The Administrative Agent b. Assignee shall have received a copycopy of the Operating Agreement, certified executed by the Borrower manager of Ourway Realty and signed all Other Members, and amended in conformity with the requirements of the Operating Agreement to indicate that all of Assignor's right, title and interest in the Interest has been transferred and conveyed to Assignee.
c. Assignee shall have received any instrument of transfer, other than this Assignment, that may be required by a Responsible Officer as the Operating Agreement or by law.
d. The representations and warranties of Assignor set forth in Section 4 of this Assignment shall be true and complete, of:
correct in all material respects (if not qualified by materiality) and in all respects (if qualified by materiality) (i) as of the Agreed Form of Scheme Press Announcement; and
date hereof and (ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date as if made on such date (provided that in writing promptly upon such conditions precedent being satisfied the cases of clauses (or waived by the Required Lendersi) and (ii), any such representation and such notice warranty made as of a specific date shall be conclusivetrue and correct in all material respects (if not qualified by materiality) and in all respects (if qualified by materiality) on and as of such specific date).
e. Assignor shall have performed in all material respects all covenants and obligations herein required to be performed or observed by it on or prior to the Closing Date.
f. On or prior to the Closing Date, binding Assignee shall have obtained any and finalall consents, approvals, authorizations, permits, licenses and waivers necessary for consummation of the transactions contemplated by this Assignment and all of the Agreements.
g. No order to restrain, enjoin or otherwise prevent the consummation of the transactions contemplated hereby shall have been entered by any court or Governmental Body and not rescinded or overturned. No litigation instituted by any Governmental Body shall be pending to restrain or invalidate any material part of the transactions contemplated by this Assignment.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement The following shall become effective on and be satisfied or waived as of the first date on which the following conditions precedent to the Effective Date:
1. The Confirmation Order shall have been entered by the Bankruptcy Court in form and substance acceptable to the Debtor, Holdings, FXCM, Leucadia, and the Required Consenting Noteholders. The Confirmation Order shall provide that, among other things, (a) the Debtor or the Reorganized Debtor, as appropriate, is authorized and directed to take all actions necessary or appropriate to consummate the Plan, including, entering into, implementing, and consummating (i) the Restructuring Transactions as described in Article IV.B, (ii) the Definitive Documents, and (iii) any other contracts, instruments, releases, leases, indentures, and other agreements or documents created in connection with or described in the Plan, (b) the Debtor or the Reorganized debtor, as appropriate, in its capacity as the Managing Member of Holdings, is authorized and directed to cause Holdings to take all actions necessary or appropriate to consummate the Plan, including, entering into, implementing, and consummating (i) the Restructuring Transaction as described in Article IV.B, (ii) the Definitive Documents, and (iii) any other contracts, instruments, releases, leases, indentures, and other agreements or documents created in connection with or described in the Plan;
2. All documents and agreements necessary to implement the Plan, including the Definitive Documents, shall have (a) been tendered for delivery and (b) been effected or executed. All conditions precedent to the effectiveness of such documents and agreements shall have been satisfied (or waived pursuant to the terms of such documents or agreements, including all authorizations, consents, and regulatory approvals required, if any, in connection with the Administrative Agent acting reasonably in assessing whether consummation of the conditions precedent Plan;
3. All actions, documents, certificates, and agreements necessary to implement this Plan shall have been satisfied) effected or executed and delivered to the required parties and, to the extent required, filed with the applicable Governmental Units in accordance with applicable laws;
4. The Professional Fee Escrow Account shall have been established and funded;
5. The New Notes Issuance shall have been (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) as a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as result of the Effective Date (except where such representations occurring will be) consummated in accordance with the terms of the Restructuring Support Agreement;
6. The Restructuring Support Agreement shall not have been terminated, shall be in full force and warranties expressly relate effect and the expenses required to an earlier date, in which case such representations and warranties be paid pursuant to Section 1.3(h) thereof shall have been true and correct paid in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, full in which case such representations and warranties shall not be required to be made on the Effective Date)Cash; and
(iii) Enclosing:
(A) Copies of the Borrower’s charter 7. The Debtor Release and by-laws, certified Third Party Release set forth in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent this Plan shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered approved by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionBankruptcy Court.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Sources: Restructuring Support Agreement (Global Brokerage, Inc.)
Conditions Precedent to Effective Date. This Agreement The Lenders’ Commitments shall not become effective on and as hereunder unless all of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by in accordance with Section 8.01) on or prior to the Required Lenders):Commitment Termination Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such each party hereto or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile electronic transmission of a signed signature page of this Agreement) that such each party hereto has signed a counterpart of this Agreement.
(b) [ReservedThe Administrative Agent shall have received certified copies of the resolutions of the Board of Directors of the Borrower approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and the Notes.]
(c) [ReservedThe Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the Borrower’s certificate of incorporation and by-laws and certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes.]
(d) The Administrative Agent shall have received on or before a certificate from the Effective Date, one or more certificates Secretary of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event State of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and New Jersey dated as of a date reasonably close to the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as date of such earlier date and except where such representations and warranties expressly relate effectiveness as to the Closing Date, in which case such representations good standing of and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance documents filed by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective DateAll costs, each dated on orfees, as applicableexpenses (including, prior to such date:
(iwithout limitation, legal fees and expenses) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, extent invoiced at least 3 two Business Days prior to the Effective DateDate and the fees contemplated by the Fee Letter payable to the Arrangers, so long as requested no less than 10 Business Days the Administrative Agent or the Lenders shall have been paid on or prior to the Effective Date, all documentation and other information in each case, to the extent required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating Fee Letter or this Agreement to be paid on or prior to the BorrowerEffective Date. The Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower and the Lenders of as to the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such notice shall be conclusive, binding conclusive and finalbinding.
Appears in 1 contract
Conditions Precedent to Effective Date. This The effectiveness of this Agreement shall become effective on and as is subject to the satisfaction of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):precedent:
(a) The Administrative Agent Agent’s receipt of the following, each of which shall be originals, facsimiles or PDFs (or its counselfollowed promptly by originals) shall have received from unless otherwise specified, each party hereto either properly executed by a Responsible Officer of the Borrower:
(i) executed counterparts of this Agreement satisfying the requirements of Section 11.10;
(ii) a counterpart customary certificate of the Secretary or Assistant Secretary of the Borrower attaching copies of its certificate of incorporation and by-laws as in effect on the Effective Date, a good standing certificate for it from the Secretary of State of the State of Delaware dated as of a recent date and resolutions of its Board of Directors authorizing execution, delivery and performance of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of it is a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date)party; and
(iii) Enclosing:
(A) Copies a customary incumbency certificate in respect of each of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body officers of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers who are authorized to sign this Agreement and the other Loan Documents on its behalf and who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby.
(b) All fees required by the Loan Documents to be delivered paid (including fees payable on or prior to the Effective Date pursuant to the Fee Letters) by the Borrower hereunder; and
Borrower, and all invoiced expenses (iiiincluding Attorney Costs) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory required to be paid by the Borrower, to the Administrative Agent. The Borrower hereby requests such counsel , the Arrangers or any Lender prior to deliver such opinion.
(f) The Administrative Agent the Effective Date shall have received a copybeen paid, certified by to the extent that such invoices have been presented to the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 two (2) Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, .
(c) The Arrangers shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the Patriot USA PATRIOT Act, in each case relating that has been requested in writing prior to the Borrower. Effective Date.
(d) The Administrative Agent shall notify representations and warranties of the Borrower contained in ARTICLE V (other than Section 5.14) or any other Loan Document shall be true and the Lenders correct on and as of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)and there shall be no Default hereunder, and such notice the Borrower shall be conclusivehave delivered a certificate from a Responsible Officer certifying to the satisfaction of the condition precedent in this clause (d).
(e) The Borrower shall have received (x) a copy of the fully executed Purchase Agreement, binding (y) a copy of the Business Combination Agreement and finalany amendments thereto and (z) a copy of the fully executed Convertible Bonds Purchase Agreement, , in each case, in form and substance satisfactory to the Lenders.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date (such date, the “Effective Date”) when each of the first date on which the following conditions precedent have been is satisfied (or waived) in accordance with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):terms herein:
(a) 4.1 The Administrative Agent (or its counsel) and the Lenders, shall have received from each party hereto either reimbursement or payment of all reasonable and documented out-of-pocket expenses (iif any) a counterpart required to be reimbursed or paid by the Borrower under Section 12.03 of this the Credit Agreement (including, the fees, charges and the other Loan Documents signed on behalf disbursements of such party or (ii) written evidence reasonably satisfactory ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent and other advisors to the Administrative Agent in accordance therewith (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementif any)).
(b) [Reserved.]
(c) [Reserved.]
(d) 4.2 The Administrative Agent shall have received from the Borrower, each Guarantor, and each Lender, counterparts of this Agreement signed on or before behalf of such Persons.
4.3 The Administrative Agent shall have received an updated Budget in compliance with the requirements set forth in Section 8.01(n) of the Credit Agreement (giving effect to the amendments to such section occurring on the Effective Date) covering the 13-week period following the Effective Date, one or more certificates in form and substance reasonably acceptable to the Administrative Agent .
4.4 As of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
, after giving effect to this Agreement, (iia) Certifying that the representations and warranties contained of each Loan Party set forth in Article 4 the Credit Agreement and in each other Loan Document are true and correct in all material respects on (unless already qualified by materiality in which case such applicable representation and as of warranty shall be true and correct), except to the Effective Date (except where extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such earlier date and except where such representations (b) no Default or Event of Default has occurred and warranties expressly relate is continuing. Each party hereto hereby authorizes and directs the Administrative Agent to declare the Closing Date, in which case such representations and warranties shall not be required this Agreement to be made on the Effective Date); and
effective (iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from shall occur) when it has received documents confirming or certifying, to the jurisdiction reasonable satisfaction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent, compliance with the conditions set forth in this Section 4. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent Such declaration shall have received a copybe final, certified by the Borrower conclusive and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior binding upon all parties to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Credit Agreement for all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalpurposes.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective and the Revolving Commitments (other than the Closing Date Revolver Portion) shall be available on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 9.01):
(a) The Administrative Agent (or its counsel) shall have received from STERIS, New HoldCo and each party hereto other Effective Date Party and each Lender either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed such a counterpart of this Agreementcounterpart.
(b) [ReservedAll fees and other amounts then due and payable by any of the Borrowers to the Administrative Agent, each Joint Lead Arranger and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced by the relevant person at least three Business Days prior to the Effective Date and to the extent such amounts are payable on or prior to the Effective Date.]
(c) [Reserved.]
(d) The Administrative Agent (or its counsel) shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies Certified copies of the resolutions or similar authorizing documentation of the governing body bodies of the Borrower STERIS, New HoldCo and each other Effective Date Party authorizing the execution such Person to enter into and delivery of perform its obligations under the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.Documents to which it is a party;
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(iii) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the BorrowerSTERIS, New HoldCo and each other Effective Date Party, but only where such concept is applicable;
(iiiii) A customary certificate of the SecretarySTERIS, Assistant Secretary or another Responsible Officer of the Borrower New HoldCo and each other Effective Date Party certifying the names and true signatures of the Borrower’s officers of STERIS, New HoldCo and each other Effective Date Party authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iiiiv) A favorable opinion letter of ▇▇▇(A) the General Counsel of STERIS and (B) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance and/or other legal counsel to STERIS reasonably satisfactory to the Administrative Agent. The Borrower hereby requests , in each case in form and substance consistent with those delivered under the Bridge Facility or, as applicable such counsel other form as is reasonably acceptable to deliver such opinionthe Administrative Agent (and covering STERIS, New HoldCo and each other Effective Date Party).
(fd) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:[Reserved.]
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(ge) The Administrative Agent shall have received, at least 3 Business Days on or prior to the Effective Date, so long as requested no less than 10 five Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to STERIS, New HoldCo and each other Effective Date Party.
(f) Substantially contemporaneously therewith, the BorrowerExisting STERIS Credit Agreement shall be terminated in full and all outstanding obligations thereunder shall be repaid in full (other than contingent obligations not then due).
(g) To the extent Advances are being made on the Effective Date, the Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. The Administrative Agent shall notify the Borrower Borrowers and the Lenders of the Effective Date in writing promptly upon such the conditions precedent in this Section 3.01 being satisfied (or waived by the Required Lendersin accordance with Section 9.01), and such notice shall be conclusive, binding conclusive and finalbinding.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Conditions Precedent to Effective Date. This Agreement The Lenders’ Commitments shall not become effective on and as hereunder unless all of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by in accordance with Section 8.01) on or prior to the Required Lenders):Commitment Termination Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such each party hereto or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile electronic transmission of a signed signature page of this Agreement) that such each party hereto has signed a counterpart of this Agreement.
(b) [ReservedCertified copies of the resolutions of the Board of Directors of the Borrower approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and the Notes.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on A certificate of the Secretary or before the Effective Date, one or more certificates an Assistant Secretary of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of certifying the Borrower’s charter certificate of incorporation and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution laws and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionNotes.
(fd) The Administrative Agent shall have received A certificate from the Secretary of State of New Jersey dated as of a copy, certified date reasonably close to the date of such effectiveness as to the good standing of and charter documents filed by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction AgreementBorrower.
(ge) The Administrative Agent shall have receivedAll costs, fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least 3 two Business Days prior to the Effective DateDate and the fees contemplated by the Fee Letters payable to the Arrangers, so long as requested no less than 10 Business Days the Administrative Agent or the Lenders shall have been paid on or prior to the Effective Date, all documentation and other information in each case, to the extent required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating Fee Letters or this Agreement to be paid on or prior to the BorrowerEffective Date. The Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower and the Lenders of as to the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such notice shall be conclusive, binding conclusive and finalbinding.
Appears in 1 contract
Sources: 364 Day Term Loan Agreement (Becton Dickinson & Co)
Conditions Precedent to Effective Date. This The amendment and restatement of the Existing Credit Agreement pursuant to this Agreement shall become effective on and as the date that all of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 8.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such each party hereto or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile electronic transmission of a signed signature page of this Agreement) that such each party hereto has signed a counterpart of this Agreement, together with a Note executed by each Borrower on the Effective Date with respect to each Lender that has requested the same pursuant to Section 2.20 at least 5 Business Days prior to the Effective Date.
(b) [ReservedThe Administrative Agent shall have received certified copies of the resolutions of the Board of Directors or other similar governing body of each Borrower (with a certified English translation if the original thereof is not in English) approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate (or other organizational) actions and governmental approvals, if any, with respect to this Agreement and the Notes.]
(c) [ReservedThe Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Borrower certifying such ▇▇▇▇▇▇▇▇’s certificate of incorporation or other similar formation document and by-laws or other similar governing document and certifying the names and true signatures of the officers of such Borrower authorized to sign this Agreement and the Notes.]
(d) The Administrative Agent shall have received on a certificate (or before other similar instrument) from the Effective Dateapplicable governmental authority (or other similar official or registry, one to the extent available) dated as of a date reasonably close to the date of such effectiveness as to the good standing of (to the extent such concept or more certificates a similar concept exists under the laws of the Borrower signed relevant jurisdiction) and charter documents filed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before customary favorable opinions of counsel to the Effective DateCompany and BD Euro Finance, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory acceptable to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 three Business Days prior to the Effective Date, so long as Date all documentation and other information regarding the Borrowers required by bank regulatory authorities under applicable “know-your-customer” and Anti-Money Laundering Laws to the extent reasonably requested no less than at least 10 Business Days prior to the Effective DateDate including, all documentation and other information required by regulatory authorities under applicable to the extent any Borrower qualifies as a “know your legal entity customer” under the Beneficial Ownership Regulation, delivery of a Beneficial Ownership Certification in relation to such Borrower to any Lender that has requested such Beneficial Ownership Certification.
(g) All costs, fees, expenses (including, without limitation, legal fees and anti-money laundering rules expenses) to the extent invoiced at least two Business Days prior to the Effective Date and regulationsthe fees contemplated by the Fee Letters payable to the Arrangers, including the Patriot ActAdministrative Agent or the Lenders shall have been paid on or prior to the Effective Date, in each case relating case, to the Borrower. extent required by the Fee Letters or this Agreement to be paid on or prior to the Effective Date.
(h) The Administrative Agent shall notify the Borrower and the Lenders have received (in each case dated as of the Effective Date in writing promptly upon such Date) (i) an officer’s certificate from the Company that the conditions precedent being contained in Sections 3.01(i) and (j) have been satisfied (or waived by as of the Required Lenders)Effective Date, and such notice (ii) a Solvency Certificate from the chief financial officer or treasurer of the Company substantially in the form of Exhibit D hereto.
(i) The representations and warranties contained in Section 4.01 shall be conclusivetrue and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, binding in which case such representations and finalwarranties shall be true and correct in all respects) on and as of the Effective Date.
(j) On and as of the Effective Date, no event shall have occurred and be continuing which constitutes a Default or an Event of Default.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date (such date, the “Effective Date”) when each of the first date on which the following conditions precedent have been is satisfied (or waived) in accordance with the terms herein:
5.1 The Administrative Agent and the Lenders, shall have received (a) reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under Section 12.03 of the Credit Agreement in connection with this Agreement (including, the fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent) and (b) a consent fee payable to the Administrative Agent acting reasonably in assessing whether for the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from account of each party hereto either (i) Lender that executes and delivers a signed counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory prior to the Administrative Agent Effective Date (which may include .pdf or facsimile transmission each such Lender, a “Consenting Lender”) in an amount equal to 0.175% of a signed signature page each such Consenting Lender’s pro rata share of this Agreement) that such party has signed a counterpart of this Agreement.the Borrowing Base in effect immediately prior to the Effective Date;
(b) [Reserved.]
(c) [Reserved.]
(d) 5.2 The Administrative Agent shall have received from the Borrower, each Guarantor, and each Lender in their respective capacities, counterparts of this Agreement signed on or before behalf of such Persons.
5.3 As of the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
after giving effect to this Agreement, (ia) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained of each Loan Party set forth in Article 4 the Credit Agreement and in each other Loan Document are true and correct in all material respects on (unless already qualified by materiality in which case such applicable representation and as of warranty shall be true and correct), except to the Effective Date (except where extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such earlier date and except where such representations (b) no Default, Event of Default or Borrowing Base Deficiency has occurred and warranties expressly relate is continuing. Each party hereto hereby authorizes and directs the Administrative Agent to declare the Closing Date, in which case such representations and warranties shall not be required this Agreement to be made on the Effective Date); and
effective (iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from shall occur) when it has received documents confirming or certifying, to the jurisdiction reasonable satisfaction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent, compliance with the conditions set forth in this Section 5. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent Such declaration shall have received a copybe final, certified by the Borrower conclusive and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior binding upon all parties to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Credit Agreement for all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalpurposes.
Appears in 1 contract
Sources: First Amendment and Waiver to Second Amended and Restated Credit Agreement (Lilis Energy, Inc.)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date (such date, the “Effective Date”) when each of the first date on which the following conditions precedent have been is satisfied (or waived) in accordance with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):terms herein:
(a) 4.1 The Administrative Agent (or its counsel) and the Lenders, shall have received from each party hereto either reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower under Section 12.03 of the Credit Agreement (i) a counterpart including, the fees, charges and disbursements of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementand other advisors to the Administrative Agent in accordance therewith).
(b) [Reserved.]
(c) [Reserved.]
(d) 4.2 The Administrative Agent shall have received from the Borrower, each Guarantor, and each Lender, counterparts of this Agreement signed on or before behalf of such Persons.
4.3 As of the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
after giving effect to this Agreement, (ia) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained of each Loan Party set forth in Article 4 the Credit Agreement and in each other Loan Document are true and correct in all material respects on (unless already qualified by materiality in which case such applicable representation and as of warranty shall be true and correct), except to the Effective Date (except where extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such earlier date and except where such representations (b) no Default, Event of Default or Borrowing Base Deficiency has occurred and warranties expressly relate is continuing. Each party hereto hereby authorizes and directs the Administrative Agent to declare the Closing Date, in which case such representations and warranties shall not be required this Agreement to be made on the Effective Date); and
effective (iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from shall occur) when it has received documents confirming or certifying, to the jurisdiction reasonable satisfaction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent, compliance with the conditions set forth in this Section 4. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent Such declaration shall have received a copybe final, certified by the Borrower conclusive and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior binding upon all parties to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Credit Agreement for all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalpurposes.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as the date (such date, the “Effective Date”) when each of the first date on which the following conditions precedent have been is satisfied (or waived) in accordance with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):terms herein:
(a) 3.1 The Administrative Agent (or its counsel) and the Lenders, shall have received from each party hereto either reimbursement or payment of all reasonable and documented out-of-pocket expenses (iif any) a counterpart required to be reimbursed or paid by the Borrower under Section 12.03 of this the Credit Agreement (including, the fees, charges and the other Loan Documents signed on behalf disbursements of such party or (ii) written evidence reasonably satisfactory ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent and other advisors to the Administrative Agent in accordance therewith (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreementif any)).
(b) [Reserved.]
(c) [Reserved.]
(d) 3.2 The Administrative Agent shall have received from the Borrower, each Guarantor, and each Lender, counterparts of this Agreement signed on or before behalf of such Persons.
3.3 As of the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
after giving effect to this Agreement, (ia) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained of each Loan Party set forth in Article 4 the Credit Agreement and in each other Loan Document are true and correct in all material respects on (unless already qualified by materiality in which case such applicable representation and as of warranty shall be true and correct), except to the Effective Date (except where extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct) as of such earlier date and except where such representations (b) no Default or Event of Default has occurred and warranties expressly relate is continuing.
3.4 That certain Purchase and Sale Agreement, dated as of February 11, 2020, between the Borrower, as seller, and that certain Person identified therein, as buyer, shall be in full force and effect and be valid, binding and enforceable in accordance with its terms, without amendment, modification or waiver thereof. Each party hereto hereby authorizes and directs the Administrative Agent to declare the Closing Date, in which case such representations and warranties shall not be required this Agreement to be made on the Effective Date); and
effective (iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from shall occur) when it has received documents confirming or certifying, to the jurisdiction reasonable satisfaction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent, compliance with the conditions set forth in this Section 3. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent Such declaration shall have received a copybe final, certified by the Borrower conclusive and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior binding upon all parties to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, Credit Agreement for all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalpurposes.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement The obligations of the Banks to make Loans (including Swing Line Loans) and of the L/C Issuer to issue Letters of Credit hereunder shall not become effective on and as of until the first date on which each of the following conditions precedent have been is satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lendersin accordance with Section 11.1):
(a) 3.1.1. The Administrative Agent (or its counsel) shall have received from the Borrower and each Bank party hereto (such Banks to constitute at least the Majority Banks) either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) 3.1.2. The Administrative Agent shall have received on or before the Effective DateGuaranty, one or more certificates of the Borrower signed duly executed by a Responsible Officer:SMF.
(i) Certifying that no Default or Event of Default 3.1.3. The Administrative Agent shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate received a Borrowing Notice with respect to the Closing DateLoans, in which case such representations and warranties shall not be required if any, to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) 3.1.4. The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A copies of the articles or certificate of incorporation or organization of the Borrower and each of its Subsidiaries, together with all amendments, certified by the appropriate governmental officer in its jurisdiction of incorporation or organization, (ii) a certificate of good standing for the Borrower and each of its Subsidiaries, certified by the appropriate governmental officer in its jurisdiction of incorporation or organization, (iii) copies, certified by the Secretary or Assistant Secretary of the Borrower and each of its Subsidiaries, of its bylaws, operating agreement or other internal governance documents, together with all amendments thereto, and (iv) copies, certified by the Secretary or Assistant Secretary of the Borrower and each of its Subsidiaries, of the resolutions or actions of its Board of Directors or other governing body authorizing the execution of the Loan Documents to which it is a party.
3.1.5. The Administrative Agent shall have received an incumbency certificate, executed by a Secretary or Assistant Secretary of the Borrower and each of its Subsidiaries, which shall identify by name and title and bear the signatures of the Authorized Officers of the Borrower and each of its Subsidiaries authorized to sign the Loan Documents to which it is a party and, in the case of the Borrower, the Authorized Officers of the Borrower authorized to submit borrowing requests and Interest Rate Election Notices, upon which certificate or similar certificate the Administrative Agent shall be entitled to rely until informed of any change in writing by an Authorized Officer.
3.1.6. The Administrative Agent shall have received a certificate, dated a date reasonably close to the Effective Date from the jurisdiction of formation and signed by an Authorized Officer of the Borrower;, confirming compliance with the conditions set forth in Sections 3.2.1 and 3.2.2.
(ii) A customary 3.1.7. The Administrative Agent shall have received a certificate of the Secretary, Assistant Secretary or another Responsible from an Authorized Officer of the Borrower certifying the names and true signatures dated as of the Borrower’s officers authorized Effective Date addressed to sign this Agreement the Administrative Agent and each of the Bank certifying that, as of such date, the Borrower and each of its Subsidiaries is Solvent (assuming with respect to each Guarantor, that the fraudulent transfer savings language contained in the Guaranty applicable to such Guarantor will be given full effect);
3.1.8. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the other documents to be delivered by Banks and dated the Borrower hereunder; and
(iiiEffective Date) A favorable opinion letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory LLP, counsel to the Borrower and the Existing Subsidiaries, covering the matters set forth in Schedule 3.1.8 and such other matters as the Administrative AgentAgent or the Majority Banks shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(f) 3.1.9. The Administrative Agent shall have received a copycopy of, certified or a certificate as to coverage under, the insurance policies required by Section 5.5 and the Borrower applicable provisions of the Collateral Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and signed by a Responsible Officer name the Collateral Agent as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreementan additional insured thereunder.
3.1.10. The Borrower shall have paid to the Administrative Agent, for the account of each Bank that consents to the amendments to the Existing Credit Agreement evidenced by this Agreement, an upfront amendment fee in an amount equal to 0.50% (g50 basis points) of such Bank’s Commitment.
3.1.11. The Administrative Agent shall have received, at least 3 Business Days received payment of all other fees and other amounts due and payable on or prior to the Effective Date, so long as requested no less than 10 Business Days prior including the fees set forth in the separate fee letter between the Administrative Agent and the Borrower and, to the Effective Dateextent invoiced, reimbursement or payment of all documentation out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
3.1.12. The Administrative Agent shall have received evidence satisfactory to the Administrative Agent that the Prudential Agreement has been executed and other information delivered by the parties thereto, and the terms and provisions of the Prudential Agreement shall be acceptable to the Administrative Agent.
3.1.13. The Prudential Intercreditor Agreement shall have been executed and delivered by the parties thereto and shall be in full force and effect.
3.1.14. The Collateral Agent shall have received the Security Agreement, duly executed by the Borrower, STI and SMF.
3.1.15. The Collateral Agent shall have received all appropriate evidence required by regulatory authorities under applicable “know your customer” the Collateral Agent in the reasonable exercise of its sole discretion necessary to determine that, subject to compliance with Sections 5.12 and anti-money laundering rules and regulations5.13, arrangements have been made for the Collateral Agent for the benefit of Secured Parties to have an Acceptable Security Interest in the Personal Property Collateral, including the Patriot Actdelivery to the Collateral Agent of (i) such financing statements (or amendments) under the UCC for filing in such jurisdictions as the Collateral Agent may require, (ii) any other documents, agreements or instruments necessary to create an Acceptable Security Interest in each case the Personal Property Collateral described therein, (iii) such certificates, powers executed in blank, and other documents, agreements or instruments necessary to create and perfect an Acceptable Security Interest in all Equity Interests, including Equity Interests in Subsidiaries of the Borrower, included in the Personal Property Collateral, (iv) lien, tax and judgment searches conducted on the Borrower and its Subsidiaries reflecting no Liens other than Excepted Liens against any of the Personal Property Collateral as to which perfection of a Lien is accomplished by the filing of a financing statement, and (v) lien releases with respect to any Personal Property Collateral currently subject to a Lien (other than Excepted Liens).
3.1.16. The Administrative Agent shall have received such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to any legal matters relating to the BorrowerBorrower and each of its Subsidiaries, this Agreement or the other Loan Documents, all in form and substance satisfactory to the Administrative Agent and its counsel. The Administrative Agent shall notify the Borrower and the Lenders Banks when each of the Effective Date in writing promptly upon such foregoing conditions precedent being required to be to the satisfaction of the Administrative Agent and/or the Collateral Agent has been satisfied (or waived by the Required Lenderspursuant to Section 11.1), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Sources: Credit Agreement (Saia Inc)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The date upon which all of the first date on which the following conditions precedent have been shall be satisfied (with shall be the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):“Effective Date”:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before copies of this Amending Agreement No. 5 executed by the Effective DateBorrower, one or more certificates the Guarantor, the Administrative Agent, the Majority Lenders and all Tranche E Lenders;
(b) the conditions precedent in Section 6.02 of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing Credit Agreement are satisfied on the Effective Tranche E Funding Date;
(iic) Certifying that the representations Borrower, the Guarantor and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties each other Global Group Entity shall have been true delivered a confirmation of guarantees and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP security in form and substance reasonably satisfactory to the Administrative Agent;
(d) a certified copy of (i) the charter documents and by-laws of the Borrower and the Guarantor; (ii) the resolutions of the board of directors (or any duly authorized committee thereof) or of the Borrower approving this Amending Agreement No. The 5 and the completion of all transactions contemplated thereunder; and (iii) all other instruments evidencing necessary corporate action of the Borrower hereby requests and the Guarantor and of any required Authorization with respect to such counsel matters;
(e) a certificate of the secretary or an assistant secretary of the Borrower and of the Guarantor certifying the names and true signatures of its respective officers authorized to deliver such opinion.sign this Amending Agreement No. 5 manually or by mechanical means;
(f) The certificates of compliance with respect to the Borrower and the Guarantor issued by Industry Canada;
(g) favorable opinions of counsel to the Borrower and the Guarantor concerning corporate existence of the Borrower and the Guarantor, due authorization, execution and enforceability of this Amending Agreement No. 5, that Accommodations Outstanding under the Tranche E Credit Facilities will constitute permitted debt under the HCN Indenture and all existing Senior Unsecured Debt and Senior Subordinated Debt, that all Accommodations Outstanding, or anticipated to be outstanding pursuant to this Amending Agreement No. 5, under the Tranche E Credit Facilities constitute indebtedness to which the debt outstanding under the HCN Notes and Senior Subordinated Debt, respectively, is fully and indefeasibly subordinated, and such as other matters as may reasonably be required by legal counsel to the Administrative Agent; and
(h) the Administrative Agent shall have received a copy, certified by the Borrower such other certificates and signed by a Responsible Officer documentation as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreementit may reasonably request.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Sources: Senior Secured Credit Facilities (Canwest Media Inc)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The occurrence of the first date on Effective Date shall be subject to the satisfaction, or waiver by the Debtors, the Required Consenting BrandCo Lenders and, to the extent required under the Restructuring Support Agreement, the Creditors’ Committee (except with respect to clause (xii) below, which may be waived by the Debtors in their sole discretion), of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either precedent: (i) a counterpart of this Agreement Confirmation and the other Loan Documents signed on behalf of such party or all conditions precedent thereto shall have occurred; (ii) written evidence reasonably satisfactory the Bankruptcy Court shall have entered the Confirmation Order and the Backstop Order, which shall be Final Orders and in form and substance acceptable to the Administrative Agent Debtors and the Required Consenting BrandCo Lenders, and in the case of the Confirmation Order, acceptable to the Creditors Committee to the extent required under the Restructuring Support Agreement; (which may include .pdf or facsimile transmission of a signed signature page of this Agreementiii) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent the Debtors shall have received on obtained all authorizations, consents, regulatory approvals, or before rulings that are necessary to implement and effectuate the Plan; (iv) the final version of the Plan, including all schedules, supplements, and exhibits thereto, including in the Plan Supplement (including all documents contained therein), shall be in form and substance acceptable to the Debtors and the Required Consenting BrandCo Lenders (except to the extent that specific consent rights are set forth in the Restructuring Support Agreement with respect to certain Definitive Documents, which shall be subject instead to such consent rights), and reasonably acceptable to the Creditors’ Committee to the extent required under the Restructuring Support Agreement, and consistent with the Restructuring Support Agreement, including any consent rights contained therein; (v) all Definitive Documents shall have been (or shall, contemporaneously with the occurrence of the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(ibe) Certifying that no Default or Event of Default executed and in full force and effect, and shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably consistent with the Restructuring Support Agreement, including any consent rights contained therein, and all conditions precedent contained in the Definitive Documents shall have been satisfied or waived in accordance with the terms thereof, except with respect to such conditions that by their terms shall be satisfied substantially contemporaneously with or after Consummation of the Plan; (vi) no Termination Notice or Breach Notice as to the Debtors shall have been delivered by the Required Consenting BrandCo Lenders under the Restructuring Support Agreement in accordance with the terms thereof, no substantially similar notices shall have been sent under the Backstop Commitment Agreement, and neither the Restructuring Support Agreement nor the Backstop Commitment Agreement shall have otherwise been terminated; (vii) Adversary Case Numbers 22-01167 and 22-01134 shall have been resolved in a form and manner satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower Debtors and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Consenting BrandCo Lenders), and such notice shall be conclusive, binding and final.;
Appears in 1 contract
Sources: Chapter 11 Restructuring Support Agreement (Revlon Consumer Products Corp)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The obligation of the first date on which Lenders to make each Loan and of the Issuing Bank to issue each Letter of Credit, including the initial Loan and the initial Letter of Credit, is subject to the fulfillment (or adequate provision for fulfillment or waiver reasonably satisfactory to the Agents) of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):precedent:
(a) The Administrative Agent Agents (or its their counsel) shall have received from each party hereto either (i) other than the Lenders a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement).
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent Agents shall have received on or before a favorable written opinion (addressed to each Agent and the Lenders and dated the Effective Date, one or more certificates ) of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event Weil, Gotshal & ▇▇▇▇▇▇ LLP, bankruptcy counsel for the Loan Parties substantially in the form of Default shall have occurred or would occur EXHIBIT E-1 and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP , inhouse assistant general counsel for Footstar Corporation; in the form of EXHIBIT E-2; in each case substantially the same in form and substance as the opinions delivered in connection with the Existing Credit Agreement. The Borrowers hereby request such counsel to deliver such opinions.
(c) All motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with this Agreement and the approval hereof shall be satisfactory in form and substance to the Agents. All service and notice requirements in connection therewith shall have been timely complied with and such requirements have been fulfilled in accordance with all applicable laws and rules. An amended Final Borrowing Order reasonably acceptable to the Agent shall have been entered in the Reorganization Cases, which order shall not have been stayed, modified, appealed, reversed or otherwise affected.
(d) The Agents shall have received good standing certificates from each of the Borrowers and certificates of the secretary or assistant secretary of each of the Borrowers, certifying as to the legal existence of the Loan Parties and as to resolutions authorizing the transactions contemplated by this Agreement and other legal matters relating to each of the Borrowers, and stating that the charters and bylaws of each of the Borrowers certified in connection with the closing of the Original Credit Agreement and the Existing Credit Agreement remain unmodified and in full force and effect; PROVIDED THAT prior to the Final Borrowing Order the Agents shall have received such additional documents and certificates as the Agents or their counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the transactions contemplated by the Loan Documents and any other legal matters relating to the Loan Parties, the Loan Documents or the transactions contemplated thereby, all in form and substance reasonably satisfactory to the Administrative Agent. Agents and their counsel.
(e) The Borrower hereby requests such counsel Agents shall have received a Borrowing Base Certificate dated the Effective Date, relating to deliver such opinionthe end of the most recent fiscal week required to be delivered pursuant to Section 6.1(e), in each case executed by a Financial Officer of the Lead Borrower.
(f) The Administrative Agent Agents shall have received a copybe reasonably satisfied that, certified by subject to the Borrower and signed by a Responsible Officer as true and completequalifications in Section 4.11, of:
(i) any financial statements or other materials delivered to them contain no material misstatements of fact or omit to state any material fact necessary in order to make the Agreed Form of Scheme Press Announcement; and
statements contained herein or therein not misleading, (ii) any financial statements delivered to them fairly present the executed Transaction Agreementbusiness and financial condition of the Lead Borrower and its Subsidiaries, and (iii) except for the commencement of the Reorganization Cases and transactions approved by the Bankruptcy Court, there has been no change in the assets, business, financial condition, income or prospects of the Lead Borrower and its Subsidiaries since the date of the most recent financial information delivered to the Agents that would reasonably be likely to result in a Material Adverse Effect.
(g) The Administrative Agent All fees due at or immediately after the Effective Date and all costs and expenses incurred by the Agents in connection with the establishment of the credit facility contemplated hereby (including the fees and expenses of counsel to the Agents) shall have receivedbeen paid in full.
(h) The consummation of the transactions contemplated hereby shall not (a) violate any applicable law, at least 3 Business Days statute, rule or regulation, or (b) result in a default or event of default under any Material Agreement, and the Agents and the Lenders shall receive a satisfactory opinion of Loan Parties' counsel to that effect. No event shall exist which is, or solely with the passage of time, the giving of notice or both, would be a default under any Material Agreement which would reasonably be likely to result in a Material Adverse Effect.
(i) No material changes in governmental rules or regulations existing (or proposed and reasonably likely to take effect), which would materially adversely affect the Loan Parties, the Agents, or any Lender involved in this transaction shall have occurred prior to the Effective Date.
(j) The Agents shall have received third party waivers and consents, so long as requested no less than 10 Business Days prior if necessary, for the execution, delivery or performance of the Loan Documents, in form reasonably acceptable to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating Agents.
(k) After giving effect to the Borrower. The Administrative Agent shall notify the Borrower Loans to be made and the Lenders Letters of Credit to be issued hereunder on the Effective Date and the application of the proceeds thereof, Excess Availability shall be at least $40,000,000.
(l) Except for in writing promptly upon such conditions precedent being satisfied (connection with the Reorganization Cases, the absence of any actions, suits or waived proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of any Borrower, threatened against or affecting any Loan Party which have not been stayed by the Required Lenders), and such notice shall commencement of the Reorganization Cases the result of which would reasonably be conclusive, binding and finallikely to result in a Material Adverse Effect.
Appears in 1 contract
Sources: Debt Agreement (Footstar Inc)
Conditions Precedent to Effective Date. This Agreement The Lenders’ Commitments shall not become effective on and as hereunder unless all of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by in accordance with Section 8.01) on or prior to the Required Lenders):Acquisition End Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such each party hereto or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile electronic transmission of a signed signature page of this Agreement) that such each party hereto has signed a counterpart of this Agreement, together with a Note executed by the Borrower with respect to each Lender that has requested the same pursuant to Section 2.19 at least 5 Business Days prior to the Effective Date.
(b) [ReservedThe Administrative Agent shall have received certified copies of the resolutions of the Board of Directors of the Borrower approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and the Notes.]
(c) [ReservedThe Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the Borrower’s certificate of incorporation and by-laws and certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes.]
(d) The Administrative Agent shall have received on or before a certificate from the Effective Date, one or more certificates Secretary of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event State of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and New Jersey dated as of a date reasonably close to the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as date of such earlier date and except where such representations and warranties expressly relate effectiveness as to the Closing Date, in which case such representations good standing of and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance documents filed by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP LLP, as special counsel to the Borrower, in form and substance reasonably satisfactory acceptable to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copyat least three Business Days prior to the Effective Date all documentation and other information regarding the Borrower required by bank regulatory authorities under applicable “know-your-customer” and Anti-Money Laundering Laws to the extent reasonably requested at least 10 Business Days prior to the Effective Date.
(g) All costs, certified fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least two Business Days prior to the Effective Date and the fees contemplated by the Fee Letter payable to the Arrangers, the Administrative Agent or the Lenders shall have been paid on or prior to the Effective Date, in each case, to the extent required by the Fee Letter or this Agreement to be paid on or prior to the Effective Date.
(h) The Acquisition shall have been (or, substantially contemporaneously with the Effective Date, shall be) consummated pursuant to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto agreed to by the Borrower or Merger Sub that in each case are materially adverse to the interests of the Lenders or the Administrative Agent, unless the Administrative Agent shall have provided written consent thereto (it being understood that any change in the purchase consideration of less than 10% in respect of the Acquisition will be deemed not to be materially adverse to the Lenders and signed by a Responsible Officer as true and complete, of:the Administrative Agent).
(i) Except (i) as disclosed in any Specified Company SEC Document; provided that (x) any information contained in any part of any Specified Company SEC Document shall only be deemed to be an exception for the Agreed Form purposes hereof if the relevance of Scheme Press Announcement; and
such item as an exception is reasonably apparent on its face and (y) in no event shall any risk factor disclosure under the heading “Risk Factors” or disclosure set forth in any “forward looking statements” disclaimer or other general statements to the extent they are predictive or forward looking in nature that are included in any part of any Specified Company SEC Document be deemed to be an exception to, or, as applicable, disclosure for purposes of, this paragraph or (ii) as set forth in the executed Transaction AgreementTarget Disclosure Letter, since December 31, 2016, there has not been any effect, change, condition, fact, development, occurrence or event that has had, or would reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect.
(gj) The Administrative Agent shall have received, to the extent required by it, (i) audited financial statements of each of the Borrower and the Acquired Business for each of their respective three most recent fiscal years ended at least 3 Business Days 60 days prior to the Effective Date; (ii) unaudited financial statements of each of the Borrower and the Acquired Business for any quarterly (other than the fourth fiscal quarter) interim period or periods ended after the date of their respective most recently audited financial statements (and corresponding periods of any prior year), so long as requested no less and more than 10 Business Days 40 calendar days prior to the Effective Date and (iii) customary pro forma financial statements, in each case meeting the requirements of Regulations S-X under the Securities Act but in each case only to the extent the Borrower will be required to file such financial statements pursuant to Item 9.01(a) of Form 8-K and Rule 3-05 and Article 11, as applicable, of Regulation S-X. It is understood and agreed that the Borrower’s or the Acquired Business’s public filing with the SEC of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (i) or (ii) as applicable, of this clause (j). It is understood and agreed that the financial statements referred to in clause (i) related to each such fiscal year ended prior to April 23, 2017, have been received.
(k) The Administrative Agent shall have received (in each case dated as of the Effective Date) (i) an officer’s certificate from the Borrower that the condition precedent contained in Sections 3.01(h) and 3.01(l) has been satisfied as of the Effective Date, and (ii) a Solvency Certificate from the chief financial officer of the Borrower substantially in the form of Exhibit D hereto.
(l) Substantially contemporaneously with the Effective Date, all documentation amounts accrued and other information required by regulatory authorities outstanding under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, Existing Credit Agreements shall have been paid in each case relating to the Borrower. The Administrative Agent shall notify the Borrower full and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice commitments thereunder shall be conclusive, binding and finalhave been terminated.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):in accordance with Section 9.01:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (or its counsel) shall have received from each party hereto either and the Initial Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Initial Lender and the Borrower;
(ii) a counterpart certificate executed by a Responsible Officer of the Borrower stating that the representations and warranties set forth in this Agreement and to be made as of the Effective Date are true and correct (or, if a representation or warranty does not include a materiality concept, true and correct in all material respects) as of the date of the certificate (or, if a representation or warranty specifically refers to an earlier date, as of such earlier date) and that no Default or Event of Default has occurred and is continuing under this Agreement or the other Loan Documents;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents signed on behalf to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the State of such party or Delaware;
(iiv) written evidence an opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Initial Lender and dated the Effective Date, in form and substance reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date)Agent; and
(iiivi) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable special tax opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Worcester LLP, counsel to the Borrower, addressed to the Administrative Agent and each Initial Lender and dated the Effective Date, in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(fb) The Administrative Agent shall have received a copyAgent’s receipt of unaudited consolidated balance sheets, certified by statements of income and cash flows of the Borrower and signed by a Responsible Officer as true the Target (but in the case of the first and completethird quarters in each financial year of the Target, of:
(ionly if the Target has published interim management statements for such quarter) for each quarterly period, beginning with the Agreed Form of Scheme Press Announcement; and
(ii) quarterly period ending March 31, 2015, that has ended at least 45 days prior to the executed Transaction AgreementEffective Date.
(gc) The Any fees required to be paid to the Administrative Agent shall have receivedAgent, the ArrangerArrangers or the Lenders on or before the Effective Date, including, to the extent invoiced at least 3 two Business Days prior to the Effective Date, so long as requested reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under this Agreement or the Syndication and Fee Letter, shall have been paid.
(d) The Administrative Agent and the ArrangerArrangers shall have received, no less later than 10 three Business Days prior to the Effective Date, all documentation and other information required about the Borrower and its subsidiaries as has been reasonably requested in writing on or prior to the date that is ten Business Days prior to the Effective Date by regulatory authorities under Administrative Agent and the Lenders with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(e) The Administrative Agent shall have received a copy, in each case relating to certified by the Borrower, of a draft of the Press Release or Offer Press Announcement (as applicable, depending on whether it is proposed to effect the Acquisition by way of a Scheme or Takeover Offer) in the form in which it is proposed to be issued. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lendersin accordance with Section 9.01), and such notice shall be conclusiveirrevocable, binding conclusive and finalbinding.
Appears in 1 contract
Conditions Precedent to Effective Date. This The effectiveness of this Agreement shall become effective on and as is subject to the fulfillment of each of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either of the following, in form and substance satisfactory to the Administrative Agent:
(i) This Agreement duly executed by the Borrower, the Lenders, and the Administrative Agent;
(ii) Any Loan Notes requested by any Lender duly executed by the Borrower;
(iii) Customary legal opinions of ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, counsel to the Credit Parties, addressed to the Lender Group, covering the transactions contemplated by the Loan Documents;
(iv) [Reserved];
(v) A certificate signed by an Authorized Signatory of each Credit Party, including a counterpart certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the certificate of incorporation or formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State (or relevant equivalent office) of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents, and with respect to the Borrower, authorizing the borrowings hereunder, and (D) certificates of good standing, existence, or similar appellation from each jurisdiction in which such Person is organized and, to the extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Person is required to be qualified to do business; provided that if a document referenced in clause (A) or (B) was delivered in connection with the Revolving Credit Agreement or not required to be delivered in connection with the Revolving Credit Agreement, then delivery of such document shall not be required so long as the applicable Credit Party delivers an officer’s certificate certifying that no changes have been made to such document, and such document remains in full force and effect;
(vi) An officer’s certificate executed by a Financial Officer of the Borrower certifying (A) the solvency of the Credit Parties, taken as a whole, as of the Effective Date, (B) that as of the Effective Date, both before and after the effectiveness of this Agreement and the other Loan Documents signed on behalf (x) all of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 of the Credit Parties under this Agreement and the other Loan Documents are true and correct in all material respects on and as of the Effective Date (except where provided that if any representation or warranty already includes a materiality or material adverse effect qualifier, such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been representation or warranty is true and correct in all material respects and if any such representation or warranty expressly relates to a prior date, such representation or warranty shall be so true and correct on and as of such earlier date prior date) and except where such representations and warranties expressly relate (y) no Default or an Event of Default is in existence, (C) that there has been no materially adverse change to the Closing Datefinancial information previously delivered to the Administrative Agent under Section 4.1(d) below, (D) that no change in the business, financial condition, results of operations, liabilities (contingent or otherwise), or properties of the Borrower and its Subsidiaries (taken as a whole) shall have occurred since December 31, 2023, which case change has had or would be reasonably expected to have a Materially Adverse Effect, and (E) that (x) all material Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or the Loan Documents and (y) attached thereto are true, correct, and complete copies of all such representations material Necessary Authorizations, if any;
(vii) Payment of all fees payable to the Administrative Agent, the Affiliates of the Administrative Agent, and warranties shall not be required the Lenders in connection with the execution and delivery of this Agreement, and payment of fees and expenses of counsel to be made on the Effective DateAdministrative Agent;
(viii) [Reserved];
(ix) An amendment to the Revolving Credit Agreement, duly executed by the Borrower, the Lenders, and the Administrative Agent (each as defined therein); and
(iiix) Enclosing:All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;
(Ab) Copies The Lead Arrangers and the Administrative Agent shall have completed their financial, regulatory, and legal due diligence of the Borrower’s charter Credit Parties, and by-lawsall credit investigations and background checks, certified in and the results, form, and substance of each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; andforegoing items shall be satisfactory to the Administrative Agent;
(Bc) Copies The Lead Arrangers and the Administrative Agent shall be satisfied that no change in the business, financial condition, results of the resolutions operations, liabilities (contingent or similar authorizing documentation of the governing body otherwise), or properties of the Borrower authorizing the execution and delivery of the Loan Documentsits Subsidiaries (taken as a whole) shall have occurred since December 31, certified by its Secretary 2023, which change has had or Assistant Secretary or any other Responsible Officer of the Borrower.would be reasonably expected to have a Materially Adverse Effect;
(ed) The Lead Arrangers and the Administrative Agent shall have received on or (i) U.S. GAAP audited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income, equity and cash flows for the three most recent fiscal years ended at least 60 days prior to the Effective Date and (ii) U.S. GAAP unaudited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income and cash flows for each subsequent fiscal quarter ended at least 40 days before the Effective DateDate (excluding the fourth quarter of any such fiscal year); provided that in each case the foregoing financial statements required to be delivered by this clause (d) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided further that the Borrower’s filing of any required audited financial statements with respect to the Borrower on Form 10-K or required unaudited financial statements with respect to the Borrower on Form 10-Q, in each dated on orcase, will satisfy the requirements under subclauses (i) or (ii), as applicable, prior to such date:
of this clause (i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrowerd);
(iie) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.[Reserved];
(f) The Administrative Agent shall have received a copy, certified by Lead Arrangers and the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less later than 10 three (3) Business Days prior to the Effective Date, all documentation and other information with respect to the Borrower, Defender, Dogwood and their respective Subsidiaries that the Lead Arrangers and the Administrative Agent reasonably determine is required by United States regulatory authorities under any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating case, that shall have been reasonably requested by the Administrative Agent or the Lenders at least ten (10) Business Days prior to the Borrower. Effective Date; and
(g) The Administrative Agent shall have received from the Lenders all tax forms and certificates required by Section 2.9. On the Effective Date, the Administrative Agent will notify the Borrower Lenders and the Lenders Borrower in writing of the occurrence of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders)Date, and such which notice shall be conclusive, binding and finalconclusive evidence of the occurrence of the Effective Date.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement (and the amendment and restatement of the Existing Credit Agreement to be effected hereby), and the obligations of the Lenders to make Loans and of the Issuing Lenders to issue Letters of Credit hereunder, shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders)::
(a) The Administrative Agent (or its counsel) As of the Effective Date, there shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) occurred no Material Adverse Change since December 30, 2006 that such party has signed a counterpart of this Agreementnot been publicly disclosed.
(b) [ReservedAs of the Effective Date, there shall exist no action, suit, investigation, litigation or proceeding affecting the Company, or any of its Subsidiaries (including the Guarantor) pending or, to the knowledge of the Company’s or the Guarantor’s executive officers, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) could reasonably be likely to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.]
(c) [ReservedAs of the Effective Date, nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect.]
(d) As of the Effective Date, all governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect.
(e) As of the Effective Date, the Company shall have paid all accrued fees and, to the extent invoiced, expenses of the Agent and the Lenders payable hereunder (including the accrued fees and expenses of counsel to the Agent, to the extent invoiced at least one Business Day prior to the Effective Date).
(f) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of the Company dated the Effective Date, stating that:
(i) The Administrative representations and warranties contained in Section 4.01 are correct in all material aspects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective DateDate the following, one or more certificates of each dated such day, in form and substance satisfactory to the Borrower signed Agent and (except for any notes requested by a Responsible Officer:the Lenders):
(i) Certifying that no Default or Event of Default To the extent any Lender shall have occurred or would occur and be continuing on requested at least one Business day prior to the Effective Date;Date that its Revolving Credit Advances be evidenced by a promissory note, a note payable to the order of such Lender.
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as Certified copies of the Effective Date (except where such representations resolutions of the Board of Directors of the Company and warranties expressly relate of the Guarantor approving this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); andthis Agreement.
(iii) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Secretary or an Assistant Secretary or another Responsible Officer of the Borrower Company certifying the names and true signatures of the Borrower’s officers of the Company authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and.
(iiiiv) A certificate of the Secretary or an Assistant Secretary of the Guarantor certifying the names and true signatures of the officers of the Guarantor authorized to sign this Agreement and the other documents to be delivered hereunder.
(v) An opinion of Cravath, Swaine & M▇▇▇▇ LLP, special New York counsel to the Company and the Guarantor, substantially in the form of Exhibit C-1 hereto and an opinion of the Assistant General Counsel of each of the Company and the Guarantor, substantially in the form of Exhibit C-2, and as to such other matters as the Agent may reasonably request.
(vi) A favorable opinion letter of ▇▇▇Milbank, Tweed, H▇▇▇▇▇ & M▇▇▇▇▇ LLP LLP, special New York counsel for the Agent, substantially in the form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionof Exhibit C-3 hereto.
(fvii) The Administrative Agent Evidence that the commitments under the 5-Year Credit Agreement with the Borrower dated as of April 28, 2004, as amended, supplemented and modified (the “Existing 2004 Credit Agreement”) shall have received a copybeen terminated and the principal and interest of the outstanding loans, certified by the Borrower and signed by a Responsible Officer as true all fees and completeother amounts owing thereunder, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreementshall have been paid in full.
(gviii) The Administrative Agent Evidence that all principal, interest and other amounts owing by the Borrowers under the Existing Credit Agreement to any lender thereunder that is not a Lender hereunder shall have received, at least 3 Business Days prior been (or shall simultaneously be) paid in full and all commitments to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Actextend credit thereunder of any such lender shall have been terminated, in each case relating in a manner satisfactory to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalAgent.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as The obligation of the Lender to make the first date on which advance hereunder by way of a Loan or the issuance of a Letter of Credit is subject to and conditional upon the prior satisfaction of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):precedent:
(a) The Administrative Agent (or its counsel) the Lender shall have received from each party hereto either (i) a counterpart of this Agreement and all applicable internal approvals for the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.Credit Facility;
(b) [Reserved.]the Lender will have received certified copies of the Organizational Documents of each Restricted Party, the resolutions authorizing the execution and delivery of, and performance of each Restricted Party’s respective obligations under, the Loan Documents and the transactions contemplated herein, and a certificate as to the incumbency of the officers of the Restricted Parties executing the Loan Documents and any other documents to be provided pursuant to the provisions hereof;
(c) [Reserved.]except as otherwise agreed by the Lender, certificates of status or comparable certificates will have been delivered to the Lender for each Restricted Party in each jurisdiction in which the Restricted Party is organized or has material assets;
(d) The Administrative Agent shall the Lender will have received on or before completed its due diligence with respect to the Effective DateRestricted Parties, one or more certificates of the Borrower signed by including a Responsible Officerreview of:
(i) Certifying the organizational structure of the Borrower;
(ii) the documents necessary for the Lender’s Know-Your-Client and Anti-Money Laundering requirements;
(iii) environmental reports, if any, and due diligence with respect to each real Property owned or leased by a Restricted Party;
(iv) the most recent financial statements and other financial information of the Restricted Parties; and
(v) all Material Contracts and Material Licences of the Restricted Parties; and the results of such due diligence will be satisfactory to the Lender in its sole discretion;
(e) except as otherwise agreed by the Lender, the Lender will have received certified copies of all shareholder, regulatory, governmental and other approvals required in order for the Borrower to enter into this Agreement and to perform its obligations hereunder;
(f) releases, discharges, subordinations and postponements that are required in the discretion of the Lender (in registerable form where necessary) with respect to all Encumbrances affecting the collateral Encumbered by the Security that are not Permitted Encumbrances, if any, will have been delivered to the Lender;
(g) certified copies of all Material Contracts of the Restricted Parties will have been delivered to the Lender;
(h) the Lender will have received payment of all fees payable to the Lender that are due and payable at such time;
(i) duly executed copies of the Security will have been delivered to the Lender, certificates representing all shares or other securities pledged (along with stock powers duly executed in blank) by the Restricted Parties will have been delivered to the Lender and all such Security will have been duly registered, filed and recorded in all Relevant Jurisdictions where required by Applicable Law or where the Lender considers it necessary, in its sole discretion, to do so;
(j) a currently dated letter of opinion of Borrower’s Counsel as to such matters and in such form as Lender’s Counsel deems appropriate addressed to the Lender and to Lender’s Counsel will have been delivered to the Lender;
(k) currently dated letters of opinion of local counsel for the Borrower as to such matters and in such form as Lender’s Counsel deems appropriate addressed to the Lender and to Lender’s Counsel will have been delivered to the Lender;
(l) the Restricted Parties will have delivered to the Lender certificates of insurance acceptable to the Lender showing the Lender as additional insured and a loss payee as its interest may appear on all insurance policies that insure the assets to be secured by the Security;
(m) all representations and warranties contained in the Loan Documents shall be true and correct in all material respects as if made on such date;
(n) no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date)continuing; and
(iiio) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent no Material Adverse Change shall have received on or before the Effective Dateoccurred and be continuing; provided that all documents and information delivered pursuant to this Section 3.01 must be in full force and effect, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionLender, acting reasonably.
(f) The Administrative Agent shall have received a copy, certified by the Borrower and signed by a Responsible Officer as true and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and final.
Appears in 1 contract
Sources: Credit Agreement (Dirtt Environmental Solutions LTD)
Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):in accordance with Section 9.01:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent (or its counsel) shall have received from each party hereto either and the Initial Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Initial Lender and the Borrower;
(ii) a counterpart certificate executed by a Responsible Officer of the Borrower stating that the representations and warranties set forth in this Agreement and to be made as of the Effective Date are true and correct (or, if a representation or warranty does not include a materiality concept, true and correct in all material respects) as of the date of the certificate (or, if a representation or warranty specifically refers to an earlier date, as of such earlier date) and that no Default or Event of Default has occurred and is continuing under this Agreement or the other Loan Documents;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents signed on behalf to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the State of such party or Delaware;
(iiv) written evidence an opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Initial Lender and dated the Effective Date, in form and substance reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on the Effective Date;
(ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date)Agent; and
(iiivi) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable special tax opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Worcester LLP, counsel to the Borrower, addressed to the Administrative Agent and each Initial Lender and dated the Effective Date, in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(fb) The Administrative Agent shall have received a copyAgent’s receipt of unaudited consolidated balance sheets, certified by statements of income and cash flows of the Borrower and signed by a Responsible Officer as true the Target (but in the case of the first and completethird quarters in each financial year of the Target, of:
(ionly if the Target has published interim management statements for such quarter) for each quarterly period, beginning with the Agreed Form of Scheme Press Announcement; and
(ii) quarterly period ending March 31, 2015, that has ended at least 45 days prior to the executed Transaction AgreementEffective Date.
(gc) The Any fees required to be paid to the Administrative Agent shall have receivedAgent, the Arranger or the Lenders on or before the Effective Date, including, to the extent invoiced at least 3 two Business Days prior to the Effective Date, so long as requested reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under this Agreement or the Syndication and Fee Letter, shall have been paid.
(d) The Administrative Agent and the Arranger shall have received, no less later than 10 three Business Days prior to the Effective Date, all documentation and other information required about the Borrower and its subsidiaries as has been reasonably requested in writing on or prior to the date that is ten Business Days prior to the Effective Date by regulatory authorities under Administrative Agent and the Lenders with respect to applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(e) The Administrative Agent shall have received a copy, in each case relating to certified by the Borrower, of a draft of the Press Release or Offer Press Announcement (as applicable, depending on whether it is proposed to effect the Acquisition by way of a Scheme or Takeover Offer) in the form in which it is proposed to be issued. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lendersin accordance with Section 9.01), and such notice shall be conclusiveirrevocable, binding conclusive and finalbinding.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement No Lender shall become effective on be required or obligated to make any Advance, and as of no Issuing Bank shall be required or obligated to make L/C Credit Extensions, in each case until the first date Business Day (the “Effective Date”) on which the following conditions precedent have been satisfied (with or waived, as evidenced by an “effective date” notice to the Borrower from each Issuing Bank and the Administrative Agent acting reasonably in assessing whether Agent), as determined by each Lender and each such Issuing Bank (provided that if the conditions precedent have been satisfied) (Effective Date does not occur on or waived by before March 31, 2010, the Required LendersCommitments of the Lender Parties shall terminate on such date):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) (unless otherwise specified), each properly executed by a Responsible Officer of the Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to the Lender Parties (unless otherwise specified) and in sufficient copies for each Agent and the Borrower (or its counsel) shall have received from each party hereto either unless otherwise specified):
(i) a counterpart five (5) executed counterparts of this Agreement and the other Loan Documents signed on behalf of such party or Agreement;
(ii) written evidence reasonably satisfactory to the Administrative Agent extent requested, duly executed Notes of the Borrower for the account of each Lender that has so requested complying with the provisions of Section 2.14;
(iii) certified copies of resolutions of the board of directors of the Borrower approving the Transactions and the execution, delivery and performance of each Financing Document to which may include .pdf the Borrower is or facsimile transmission is to be a party, and of all documents evidencing other necessary corporate action with respect to the Transactions and each Financing Document to which the Borrower is or is to be a party;
(iv) copies of a signed signature page certificate of this Agreement) that such party has signed a counterpart the Secretary of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received States of Maryland and Virginia, dated on or no earlier than 15 days before the Effective Date, one or more certificates certifying (A) as to a true and correct copy of the certificate of formation of the Borrower signed by a Responsible Officer:and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such certificate on file in such Secretary’s office, (2) the Borrower has paid all franchise taxes to the date of such certificate and (3) the Borrower is duly formed and in good standing or presently subsisting under the laws of the States of Maryland and Virginia;
(iv) Certifying that copies of a certificate of the Secretary of State of each jurisdiction (other than the jurisdiction of its formation) set forth in Schedule 3.01(a) which shall be each jurisdiction where the Borrower conducts a material portion of its business, on or no Default or Event of Default shall have occurred or would occur and be continuing on earlier than 30 days before the Effective Date, stating that the Borrower is duly qualified to do business and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate, as applicable;
(iivi) Certifying that a certificate signed on behalf of the representations and warranties contained Borrower by its secretary or any assistant secretary (the statements made in Article 4 are which certificate shall be true and correct in all material respects on and as of the Effective Date Date), certifying (except where such representations and warranties expressly relate A) as to an earlier date, in which case such representations and warranties shall have been a true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies copy of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body Constituent Documents of the Borrower authorizing the execution and delivery as of the Loan Effective Date and each amendment to its Constituent Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of if any, from the Borrower.
(edate on which the resolutions referred to in Section 3.01(a)(iii) The Administrative Agent shall have received on or before were adopted to the Effective Date, each dated on or, as applicable, prior to such date:
(iB) A good standing certificate the absence of any proceeding for the dissolution or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer liquidation of the Borrower certifying and (C) the names and true signatures of the Borrower’s officers of the Borrower authorized to sign this Agreement each Financing Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(vii) forecasts prepared by management of the Borrower hereunder; andof balance sheets, income statements and cash flow statements of the Borrower reasonably acceptable to the Administrative Agent on a consolidated basis for each fiscal year commencing with the fiscal year ending December 31, 2009 through the fiscal year ending December 31, 2012 to Lenders who agree to be bound by customary confidentiality and non-disclosure agreements satisfactory to the Borrower;
(iiiviii) A favorable a legal opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Borrower, as to such matters as the Administrative Agent may reasonably request;
(ix) legal opinions of Hunton & ▇▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory DLA Piper LLP, local counsel to the Borrower, as to such matters as the Administrative Agent. The Agent may reasonably request;
(x) a certificate signed by a Responsible Officer of the Borrower hereby requests such counsel to deliver such opinionthe effect that (A) the representations and warranties of the Borrower contained in Article IV and each other Financing Document are true and correct on and as of the Effective Date and (B) No Default has occurred and is continuing; and
(xi) audited Consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending December 31, 2008 and unaudited financial statements for the fiscal quarter periods ended March 31, 2009, June 30, 2009 and September 30, 2009.
(fb) The All material Governmental Approvals and third party consents and approvals or waivers necessary in connection with the Transactions shall have been obtained and shall be in full force and effect, and the Administrative Agent shall have received a copyevidence satisfactory to it that the foregoing have been accomplished.
(c) Except for Disclosed Matters as of the date hereof, certified since December 31, 2008, there shall not have occurred any Material Adverse Change.
(d) All Taxes (i) due and payable on or prior to the Effective Date by the Borrower or any of its Subsidiaries in connection with the execution, delivery, filing, recording or admissibility in evidence of the Financing Documents or to ensure the legality, validity, enforceability or admissibility in evidence of the Financing Documents and signed (ii) due and payable on or prior to the Effective Date by a Responsible Officer as true the Borrower or any of its Subsidiaries in connection with the consummation of the transactions contemplated by, and completethe performance of, of:
the Financing Documents shall, in the case of clauses (i) the Agreed Form of Scheme Press Announcement; and
and (ii) the executed Transaction Agreementof this Section 3.01(d), have been duly paid in full.
(ge) The Borrower shall have paid all accrued fees of the Administrative Agent, the Lender Parties and the Arranger Parties and all accrued expenses of the Administrative Agent shall have received, and the Arranger Parties to the extent invoiced at least 3 five Business Days prior to the Effective Date.
(f) The Borrower shall have received a senior unsecured long-term investment-grade rating (or, so long as requested no less than 10 Business Days prior in the absence thereof, an issuer rating) from each of S&P, ▇▇▇▇▇’▇ & Fitch.
(g) The Borrower shall have duly obtained or been assigned and there shall be in full force and effect in the name of the Borrower, and not subject to the Effective Dateany current legal proceeding (including any Environmental Claim), waiting period or appeal or to any unsatisfied condition that would reasonably be expected to allow material modification, expiration or revocation of, and all applicable appeal periods shall have expired with respect to, all documentation and other information material Applicable Permits required under Applicable Law or Environmental Law to be obtained by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders as of the Effective Date for the then-current stage of development of the TrAIL Transmission Line, except for any Permit or Environmental Permit the failure of which to obtain could not reasonably be expected to have a Material Adverse Effect. Such Applicable Permits shall not be subject to any restriction, condition, limitation or other provision that could, individually or in writing promptly upon the aggregate, reasonably be expected to have a Material Adverse Effect. With respect to any Permit or Environmental Permit not yet obtained, no facts or circumstances exist, in the reasonable judgment of the Borrower, which indicate that any such conditions precedent being satisfied (Permit or waived by Environmental Permit will not be obtainable prior to the Required Lenders), and time that such notice shall be conclusive, binding and finalPermit or Environmental Permit becomes an Applicable Permit.
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall become effective on and as Each Lender’s obligation to advance its Applicable Percentage of the first date on which Tranche A Loan is subject to the satisfaction (or waiver in accordance with Section 11.5 hereof) of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):conditions:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Collateral Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officerreceived:
(i) Certifying that no Default copies of the Loan Documents (including the Disclosure Letter and the Collateral Documents but excluding any Control Agreements or Event bailee waivers, as applicable, described in Schedule 5.16 of Default shall have occurred or would occur the Disclosure Letter) executed and be continuing on the Effective Datedelivered by each applicable Credit Party, as applicable;
(ii) Certifying that the representations (x) true, correct and warranties contained in Article 4 are true and correct in all material respects on and as complete copies of the Effective Date Operating Documents of each of the Credit Parties, and (except where such representations and warranties expressly relate to an earlier datey) a Secretary’s Certificate, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on dated the Effective Date); and, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to the Collateral Agent) and attaching Borrowing Resolutions with respect to the Loan Documents and the Term Loans for each Credit Party, in form and substance reasonably satisfactory to the Collateral Agent;
(iii) Enclosing:the Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to the Collateral Agent;
(Aiv) Copies of the Borrower’s charter and by-laws, certified in a good standing certificate for each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan DocumentsCredit Party, certified by its the Secretary of State (or Assistant Secretary or any other Responsible Officer the equivalent thereof) of the Borrower.
State of incorporation (eor formation if applicable) The Administrative Agent shall have received on or before the Effective Date, each dated on or, of such Credit Party as applicable, of a date no earlier than thirty (30) days prior to such date:
(i) the Tranche A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the BorrowerClosing Date;
(iiv) A customary certificate an opinion of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP LLP, counsel to Borrower, addressed to the Collateral Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Collateral Agent. The Borrower hereby requests such counsel to deliver such opinion.;
(fvi) The Administrative evidence that the insurance policies required by Section 5.5 hereof are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of the Collateral Agent for the benefit of Lenders and the other Secured Parties (such evidence to be in form and substance reasonably satisfactory to the Collateral Agent, it being understood that “under written contract” or similar general endorsements shall have received a copy, certified by be reasonably satisfactory to the Borrower and signed by a Responsible Officer as true and complete, of:Collateral Agent);
(ivii) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(viii) a certificate of the Executive Vice President, Corporate and Administrative Affairs and Chief Financial Officer of Borrower, substantially in the form of Exhibit D attached hereto, attesting that, as of the Effective Date, after giving effect to the transactions occurring on such date, including the incurrence of Indebtedness under the Tranche A Note, that Borrower and its Subsidiaries, on a consolidated basis, are Solvent;
(ix) a certificate, dated the Effective Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in this Section 3.1 (such certificate to be in form and substance reasonably satisfactory to the Collateral Agent);
(x) a certificate, dated the Effective Date and signed by a Responsible Officer of Borrower, confirming there is no litigation, public or private, or administrative proceeding, governmental investigation or other legal or regulatory development, pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to the Collateral Agent); and
(xi) (i) the audited consolidated financial statements and the related audited consolidated statements of operations, cash flows and changes in equity of Borrower and its Subsidiaries as at December 31, 2016; (ii) the unaudited consolidated balance sheets and the related unaudited consolidated statements of operations, cash flows and changes in equity of Borrower and its Subsidiaries as of the fiscal quarters ended March 31, 2017, June 30, 2017 and September 30, 2017; and (iii) for the interim period from the most recent audited period to the Effective Date, the unaudited consolidated balance sheets (including the notes thereto) for each monthly period completed at least thirty (30) days prior to the Effective Date; provided, however, that the filing of the required financial statements on Form 10-K and Form 10-Q with, and in accordance with the requirements of the SEC by Borrower will constitute receipt by Lender of the financial statements described in clauses (i) and (ii) above.
(b) each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, in each case relating that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the BorrowerCollateral Agent. The Administrative Agent All applicable waiting periods shall notify have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Borrower transactions contemplated by the Loan Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice time for any applicable agency to take action to set aside its consent on its own motion shall be conclusive, binding and final.have expired; and
Appears in 1 contract
Conditions Precedent to Effective Date. This Agreement shall not become effective on and as of until the first date on which each of the following conditions precedent have been is satisfied (with the or waived in writing by Administrative Agent acting reasonably in assessing whether and the conditions precedent have been satisfied) Lenders (or waived by the Required Lenders“Effective Date”):
(a) The This Agreement shall be executed by each Obligor party hereto, Administrative Agent (or its counsel) and Lenders, and counterparts hereof as so executed shall have received from been delivered to Administrative Agent, together with:
(A) copies of proper UCC-1 financing statements, filed or duly prepared for filing under the Uniform Commercial Code in the jurisdictions necessary to perfect the Liens on assets of each party hereto either (i) a counterpart of the Obligors created under this Agreement and the other Loan Security Documents, constituting the Collateral, and
(B) evidence that all other actions, recordings and filings required on the Effective Date pursuant to this Agreement and the other Security Documents signed necessary to perfect the Liens created thereby on behalf of such party the Collateral (subject to no Lien other than Permitted Liens) shall have been taken, completed or (ii) written evidence otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission including receipt of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.customary lien searches and UCC-3 termination statements);
(b) [Reserved.]A Guaranty shall be executed by each Subsidiary required to be a Guarantor on the Effective Date and Administrative Agent, and counterparts thereof as so executed shall have been delivered to Administrative Agent;
(c) [Reserved.]Each Pledge Agreement, Copyright Security Agreement, Patent Security Agreement, Trademark Security Agreement and Deposit Account Control Agreement (as applicable), in each case, shall be executed by each applicable Obligor and Administrative Agent, and counterparts thereof as so executed shall have been delivered to Administrative Agent;
(d) The Administrative Agent shall have entered into an Intercreditor Agreement with the Borrower and ABL Administrative Agent in form and substance reasonably satisfactory to Administrative Agent;
(e) Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of Obligors certifying that, after giving effect to the initial Loans and transactions hereunder occurring on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officer:
(i) Certifying that the Obligors (taken as a whole) are Solvent; (ii) no Default or Event of Default shall have occurred or would occur exists; and be continuing on the Effective Date;
(iiiii) Certifying that the representations and warranties contained set forth in Article 4 Section 9 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and the Effective Date, except where to the extent such representations and warranties expressly relate are made on and as of a specified date (and not required to be brought down to the Closing Effective Date), in which case the same shall continue on the Effective Date to be true and correct as of the applicable specified date (or, in the event such representations and warranties are qualified by materiality or material adverse effect or language of similar import, such representations shall not be required to be made on true and correct in all respects as of the Effective Date); and;
(iiif) Enclosing:
Administrative Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (Ai) Copies that attached copies of the Borrowersuch Obligor’s charter Organic Documents are true and by-lawscomplete, certified and in each instance by its Secretaryfull force and effect, Assistant Secretary or any other Responsible Officer without amendment except as shown and (ii) that an attached copy of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan DocumentsDocuments is true and complete, certified by its Secretary and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or Assistant Secretary or any other Responsible Officer of the Borrower.revoked, and constitute all resolutions adopted with respect to this credit facility;
(eg) The Administrative Agent shall have received on or before the Effective Date, each dated on orgood standing certificates, as applicable, for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates qualification;
(h) Administrative Agent shall have received final executed copies of the ABL Loan Documents, and all related agreements, documents and instruments as in effect on the Effective Date all of which shall be reasonably satisfactory in form and substance to Administrative Agent and the transactions contemplated by such documentation shall be consummated prior to such date:or in simultaneously therewith the making of the initial Advance;
(i) A good standing certificate or similar certificate dated Administrative Agent shall have received evidence that a date reasonably close to the Effective Date from the jurisdiction notice of formation redemption has been issued in respect of the BorrowerSecond Lien Notes in accordance with the terms of the Indenture;
(j) Administrative Agent shall have received written opinions of (i) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) A customary certificate of the SecretarySmith, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP and (iii) ▇▇▇▇▇▇ LLP & ▇▇▇▇▇▇, P.C., all such opinions to be in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.;
(fk) The Administrative Agent shall have received a copy, certified by completed Perfection Certificate dated the Borrower Effective Date and signed by a Responsible Senior Officer as true and completeof the Borrower, of:
(i) the Agreed Form of Scheme Press Announcementtogether with all attachments contemplated thereby; and
(iil) the executed Transaction Agreement.
(g) The Borrower shall have paid all reasonable and documented out-of-pocket fees and expenses of Administrative Agent shall and of legal counsel to Administrative Agent that have received, at least 3 Business Days been invoiced on or prior to the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by connection with the Required Lenders)preparation, negotiation, execution and such notice shall be conclusive, binding and finaldelivery of this Agreement.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Conditions Precedent to Effective Date. This Agreement and the Commitments shall become effective on and as of the first date on which hereof (the "Effective Date") upon the fulfillment of all of the following conditions precedent have been satisfied (with to the Administrative satisfaction of the Agent acting reasonably in assessing whether and the conditions precedent have been satisfied) (or waived by the Required Lenders)::
(a) The Administrative Agent (or its counsel) Agent, on behalf of the Lenders, shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible Officerfollowing:
(i) Certifying that no Default or Event This Agreement duly executed by the Borrower, each Lender and the Agent;
(ii) A Revolving Note, dated the Effective Date, payable to the order of Default shall have occurred or would occur each Lender in the amount of such Lender's Commitment and be continuing on duly executed by the Borrower;
(iii) A Swing Line Note, dated the Effective Date, payable to the order of the Swing Line Lender in the amount of the Swing Line Subfacility and duly executed by the Borrower;
(iv) The Subsidiary Guarantee, executed in favor of the Agent by each Domestic Subsidiary of the Borrower existing as of the Effective Date;
(iiv) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as An opinion or opinions of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate counsel to the Closing Date, Borrower and the Guarantors in which case such representations form and warranties shall not be required substance satisfactory to be made on the Effective Date); andAgent;
(iiivi) Enclosing:
(A) Copies of the Borrower’s charter and by-laws, A certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies copy of the resolutions or similar authorizing documentation of the governing body Board of Directors of the Borrower authorizing and the Guarantors the execution and delivery of this Agreement and/or the other Loan DocumentsDocuments to which they are a party;
(vii) A copy of the charter documents and by-laws of the Borrower and the Guarantors, together with all amendments thereto, certified by its the Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on Borrower or before the Effective Date, each dated on orsuch Guarantor, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to as being true, complete and correct and in effect as of the Effective Date from the jurisdiction of formation of the BorrowerDate;
(iiviii) A customary An incumbency certificate of the Secretary, an Assistant Secretary or another Responsible Officer an Assistant Treasurer of the Borrower and the Guarantors certifying the names and true signatures of each officer of the Borrower and the Guarantors authorized to execute the Loan Documents;
(ix) Certificates of good standing, existence or its equivalent for each of the Borrower and its Subsidiaries certified as of a recent date by the appropriate governmental authorities of its state of incorporation and the state where its headquarters is located;
(x) By wire transfer of immediately available funds, the Borrower shall have paid to the Agent, on behalf of the Lenders, as applicable, all upfront fees and any other fees due and payable to the Lenders on or before the Effective Date;
(xi) A certificate of an Authorized Officer of the Borrower’s officers authorized to sign this Agreement , dated the Effective Date, certifying that the matters contained in clauses (b) and the other documents to be delivered by the Borrower hereunder(c) of Section 4.2 hereof are true and correct; and
(iiixii) A favorable opinion letter certificate, executed by an Authorized Officer of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP the Borrower, demonstrating (based on preliminary financial information) in form and substance reasonably satisfactory sufficient detail the Consolidated Leverage Ratio as of the fiscal quarter ending December 31, 2001 giving effect on a Pro Forma Basis to any Acquisitions during such Fiscal Quarter (the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion"Pro Forma Closing Certificate").
(fb) The Administrative Borrower shall have delivered to the Agent and the Lenders (A) the Borrower's Form 10-K for the Fiscal Years ending June 30, 1999, 2000 and 2001 and Form 10-Q for the Fiscal Quarter ending September 30, 2001, and (B) such other financial information regarding the Borrower and its Consolidated Subsidiaries as the Agent or any Lender shall reasonably request;
(c) By wire transfer of immediately available funds, the Agent shall have received a copy, certified by the Borrower Administrative Fee due and signed by a Responsible Officer as true and complete, of:payable to the Agent on the Effective Date pursuant to the Administrative Fee Letter;
(id) By wire transfer of immediately available funds, Bank of America shall have received all other fees due and payable to it on the Agreed Form of Scheme Press AnnouncementEffective Date in accordance with the Administrative Fee Letter; and
(ii) the executed Transaction Agreement.
(ge) The Administrative Agent Borrower shall have receivedterminated the commitments under the Existing Credit Agreement and repaid in full (or will, at least 3 Business Days prior to with the initial advance hereunder on the Effective Date, so long as requested no less than 10 Business Days prior to repay in full) the Effective Date, all documentation loans and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalamounts owing thereunder.
Appears in 1 contract
Sources: Revolving Credit Agreement (Caci International Inc /De/)
Conditions Precedent to Effective Date. This Agreement becoming effective is subject to the condition precedent that Collateral Agent and each Lender shall become effective on consent to or shall have received, in form and substance satisfactory to Collateral Agent and each Lender, such documents, and completion of such other matters, as of the first date on which the following conditions precedent have been satisfied (with the Administrative Collateral Agent acting and each Lender may reasonably in assessing whether the conditions precedent have been satisfied) (deem necessary or waived by the Required Lenders):appropriate, including, without limitation:
(a) The Administrative Agent original Loan Documents (or its counsel) shall have received from each party hereto either (i) a counterpart of this other than the Reaffirmation Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.be delivered pursuant to Section 3.2), each duly executed by Borrower and each Subsidiary, as applicable;
(b) [Reserved.]a completed Perfection Certificate for Borrower and each of its Subsidiaries;
(c) [Reserved.]a duly executed Fee Letter;
(d) The Administrative Agent shall have received on or before the Effective Date, one or more Operating Documents and good standing certificates of Borrower and its Subsidiaries certified by the Secretary of State (or equivalent agency) of Borrower’s and such Subsidiaries’ jurisdiction of organization or formation and each jurisdiction in which Borrower signed by and each Subsidiary is qualified to conduct business, each as of a Responsible Officer:
date no earlier than thirty (i30) Certifying that no Default or Event of Default shall have occurred or would occur and be continuing on days prior to the Effective Date;
(e) a certificate of Borrower in substantially the form of Exhibit F hereto executed by the Secretary of Borrower with appropriate insertions and attachments, including with respect to (i) the Operating Documents of Borrower (which Certificate of Incorporation of Borrower shall be certified by the Secretary of State of the State of Delaware) and (ii) Certifying that the representations and warranties contained in Article 4 are true and correct in all material respects on and as of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies of the resolutions adopted by Borrower’s charter and by-laws, certified in each instance board of directors for the purpose of approving the transactions contemplated by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of the Loan Documents, certified by its Secretary or Assistant Secretary or any other Responsible Officer of the Borrower.
(e) The Administrative Agent shall have received on or before the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; and
(iii) A favorable opinion letter of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.
(f) The Administrative Agent shall have received a copycertified copies, certified by the Borrower and signed by a Responsible Officer dated as true and complete, of:
of date no earlier than thirty (i30) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreement.
(g) The Administrative Agent shall have received, at least 3 Business Days days prior to the Effective Date, so long of financing statement searches, as requested no less than 10 Business Days prior to Collateral Agent shall request, accompanied by written evidence (including any UCC termination statements) that the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot ActLiens indicated in any such financing statements either constitute Permitted Liens or have been or, in each case relating to connection with the Borrower. The Administrative Agent shall notify the Borrower and the Lenders initial Term Loan, will be terminated or released; and
(g) payment of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by closing fee payable under the Required Lenders), and such notice shall be conclusive, binding and finalterms of the Fee Letter.
Appears in 1 contract
Sources: Loan and Security Agreement (Senseonics Holdings, Inc.)
Conditions Precedent to Effective Date. This Agreement The obligations of each Lender to make their respective Commitments available hereunder shall become effective on and as be subject to the fulfillment of the first date on which each of the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waived by the Required Lenders):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by Date in a Responsible Officermanner satisfactory to each Lender:
(i) Certifying that no Default or Event of Default Each Lender shall have occurred or would occur received the following documents, each dated and be continuing i n form and substance as i s sati sfactory to each L ender:
(1) copies of the resolution(s) of the Board of Commissioners of the Authority approving the execution and delivery of this Agreement, the Bank Notes and the Indenture, certified by an authorized official of the Authority as being true and complete and in full force and effect on the Effective Date;
(ii) Certifying that the representations Date and warranties contained in Article 4 are true and correct in all material respects on and as a copy of the Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made on the Effective Date); and
(iii) Enclosing:
(A) Copies resolution of the Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer Board of Commissioners of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing Authority approving the execution and delivery of the Loan DocumentsBOE Contract;
(2) certified copies of all approvals, certified by its Secretary authorizations and consents of any trustee, or Assistant Secretary holder of any indebtedness or obligation of the Authority or any other Responsible Officer Governmental Authority necessary for the Authority to enter into each of this Agreement, the Bank Notes and the Indenture and the transactions contemplated herein and therein;
(A) the audited annual fi nancial statements of the Borrower.Authority for the Fiscal Year ended J une 30, 2017, and a copy of the most recent budget of the Authority (such requirement to be satisfied if such information is available on the Authority’s website) and (B) the investment policy of the Authority; and
(e4) The Administrative Agent shall have received on or before an executed certificate of an authorized official of the Effective Date, each Authority dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from certifying as to the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretaryauthority, Assistant Secretary or another Responsible Officer of the Borrower certifying the names incumbency and true specimen signatures of the Borrower’s officers authorized officials authorized to sign this Agreement and the B ank N otes and any other documents to be delivered del ivered by it hereunder and who wi 11 be authorized to represent the Borrower hereunderAuthority in connection with this Agreement, upon which the Administrative Agent and the Lenders may rely until it receives a new such certificate;
(5) an executed A uthori zed R epresentative Certi fi cate;
(6) an executed certificate dated the Effective Date and executed by an Authorized Representative, certifying that as of the Effective Date the Debt Service Ccverage Ratio i s equal to or greater than 130%;
(7) an executed ori gi nal or certi fi ed copy, as appl i cabl e, of each of the Program Documents;
(8) each original executed Bank Note; and
(iii9) A favorable opinion letter of ▇▇▇an IRS Form W-9 duly completed by the Authority.
(ii) There shall not have occurred any change or any development involving a prospecti ve change i n the f i ▇▇▇▇▇ & ▇▇▇▇▇ LLP al or operati ng condi ti on of the A uthori ty or its ability to pay the Obligations from that set forth in the audited annual financial statements of the Authority for the Fiscal Year endedJ une 30, 2017, provided to the Administrative Agent and the Lenders, that in the judgment of the Administrative Agent or either Lender is material or adverse to the Lenders. No law, regulation, ruling or other action of the United States, the State of California or the State of New York or any political subdivision or authority therein or thereof shall be in effect or shall have occurred, the effect of which would be to prevent the Authority, the Administrative Agent or either Lender from fulfilling its respective obligations under this Agreement and the other Program Documents.
(iii) Each Lender shall have received an opinion addressed to the Administrative Agent and each Lender and dated the Effective Date from the City Attorney of the City and County of San Francisco, in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests Lenders and their counsel, which prcvides for, among other opinions, the following: (1) the execution, delivery and performance by the Authority of this Agreement, each Bank Note and the Indenture are within the Authority’s powers, have been duly authorized by all necessary action, and require no action by or in respect of, or filing with, any governmental body, agency or official that has not been accomplished and such counsel executi on, del ▇▇▇▇▇ and performance does not vi d ate the consti tuti on or I aws of the State, (2) this Agreement, each Bank Note and the Indenture have been duly authorized, executed and delivered and this Agreement and each Bank Note are valid, binding and enforceable against the Authority, and (3) such other matters as the Lenders may reasonably request, in form and substance satisfactory to deliver such opinionthe Lenders and their counsel.
(fiv) The following statements shall be true and correct on the Effective Date, and each Lender shall have received a certificate signed by an Authorized Representative, dated the Effective Date, certifying that:
(1) (A) the representations and warranties of the Authority contained in the Indenture, the Bank Notes and this Agreement are true and correct on and as of the Effective Date as though made on and as of such date (except to the extent any such representation or warranty specifically relates to an earlier date, then such representation or warranty shall be true and correct as of such earlier date); (B) no Default or Event of Default has occurred and is continuing or would result from the Authority’ s execution and del ▇▇▇▇▇ of thi s Agreement or the B ank Notes or the acceptance of the Commitment by the Authority; (C) the audited annual financial statements of the Authority for the Fiscal Year endedjune 30, 2017, including the balance sheet as of such date of said period, all examined and reported on by ▇▇▇▇▇▇▇▇, Trine, Day & Co. LLP as heretofore delivered to the Administrative Agent and each Lender correctly and fairly present the financial condition of the Authority as of said date and the results of the operations of the Authority for such period, have been prepared in accordance with GAAP consistently applied except as stated in the notes thereto; (D) sincej une 30, 2017, except as disclosed to the Admi ni strative Agent and each Lender i n writi ng, there has been no Material Adverse Change or Material Adverse Operational Effect; (E) the acceptance of the Commitment by the Authority pursuant to this Agreement is an arm’s length commercial transaction between the Authority, the Administrative Agent and each Lender; (F) the Authority has consulted with its own respective legal and financial advisors in connection with the acceptance of the Commitment by the Authority pursuant to this Agreement; (G) neither the Administrative Agent nor the Lenders have acted as a fiduciary in favor of the Authority with respect to the Bank Notes or the acceptance of the Commitment by the Authority; (FI) all conditions precedent set forth in the Indenture with respect to issuance of each Bank Note shall have been satisfied and (I) to the best knowledge of the Authority, the Authority Rating has not been reduced, withdrawn or suspended by any Rating Agency since the dated date of the Rating Documentation; and
(2) No actions, suits or proceedings are pending in which service of process has been completed against the Authority or, to the Authority’s knowledge, threatened against the Authority in any court or before any arbitrator of any kind or before or by any governmental or non-gcvernmental body which could reasonably be expected to result in a Material Adverse Effect or a Material Adverse Operational Effect. For the avoidance of doubt, this certification does not apply to the Sunshine Ordinance Litigation.
(v) Each Lender shall have received an opinion addressed to the Administrative Agent and each Lender and dated the Effective Date of Bond Counsel as to the due authorization, execution and delivery of this Agreement, each Bank Note and the Indenture, and as to the validity and enforceability with respect to the Authority of this Agreement, each Bank Note and the Indenture, the exclusion of interest on the Loans from gross income for federal income tax purposes of the Lenders, the pledge of Revenues securing each Bank Note constituting avalid pledge, and such other matters as the Administrative Agent or either Lender may reasonably request, in form and substance sati sfactory to the Admi ni strative Agent, the Lenders and thei r counsel.
(vi) All necessary action on the part of the Authority shall have been taken as required for the assignment and pledge of a lien on the Revenues for the benefit of the Lenders as described in Section 5.1 hereof.
(vii) All other legal matters pertaining to the execution and delivery of this Agreement, the Bank Notes and the other Program Documents shall be satisfactory to the Administrative Agent, the Lenders and their counsel. The Administrative Agent shall have received evidence satisfactory to the Administrative Agent and the Lenders that all conditions precedent to the issuance of each Bank Note as Parity Debt pursuant to the Indenture have been satisfied.
(viii) The Administrative Agent shall have received a copy, certified written confirmation dated within ten (10) days prior to the Effective Date that the Authority Ratings are at least “AA” (or its equivalent) by S&P and “AAT’ (or its equivalent) by Fitch (referred to herein as the Borrower and signed by a Responsible Officer as true and complete, of:“ Rating Documentation”).
(ix) No Bank Note shall be (i) the Agreed Form of Scheme Press Announcement; and
assigned a specific rating by any Rating Agency, (ii) registered with The Depository Trust Company or any other securities depository, (iii) issued pursuant to any type of official statement, private placement memorandum or other offering document, (iv) assigned a CUSIP number by Standard & Poor’s CUSIP Service or (v) placed or offered by a broker-dealer in the executed Transaction Agreementcapacity of an underwriter or a placement agent.
(gx) The Each Lender shall have determined (in its sole discretion) that (i) none of the making of any Advances or Loans or the consummation of any of the transactions contemplated by this Agreement, the Bank Notes and the other Program Documents will violate any law, rule, guideline or regulation applicable to the Authority, the Administrative Agent or such Lender, this Agreement or any other Program Document; and (ii) si nee June 30, 2017, nothing has occurred which would be reasonably likely to result in a Material Adverse Effect or a Material Adverse Operational Effect; and (iii) there has been no material adverse change in the laws, rules or regulations (or their interpretation or administration) that, inany case, may adversely affect the consummation of the transacti ons contempl ated hereby, or by any Program Document.
(xi) Each Lender and the Administrative Agent shall have receivedreceived such other documents, at least 3 Business Days prior certificates, opinions, approvals and filings with respect to this Agreement, the Bank Notes and the other Program Documents as either Lender or the Admi ni strative Agent may reasonably request.
(xii) The Authority shall have paid State Street in full for (A) interest on the Existing Advance to but not including the Effective Date and calculated as set forth in the Existing Credit Agreement and (B) all unpaid commitment fees under the Existing Credit Agreement for the period from and including April 2, 2018, to but not including the Effective Date, so long as requested no less than 10 Business Days prior to .
(A) Each Lender and the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify have received a flow of funds memorandum executed by an Authorized Representative of the Borrower Authority, each Lender and the Lenders of Administrative Agent with respect to the Existing Advance remaining outstanding as the Initial Revolving Loan hereunder on the Effective Date and (B) U.S. Bank shall have funded its Commitment Percentage of the Existing Advance as set forth in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalflow of funds memorandum.
Appears in 1 contract
Sources: Revolving Credit Agreement
Conditions Precedent to Effective Date. This Agreement shall not become effective on effective, and as no Extensions of the first date on which the following conditions precedent have been satisfied (with the Administrative Agent acting reasonably in assessing whether Credit shall be made hereunder, unless all of the conditions precedent set forth in this Section 4.1 shall have been satisfied) (or waived by the Required Lenders)::
(a) The Administrative Agent (or its counsel) shall have received from received, with a copy for each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved.]
(c) [Reserved.]
(d) The Administrative Agent shall have received on or before the Effective Date, one or more certificates of the Borrower signed by a Responsible OfficerBank:
(i) Certifying that no Default the certificate or Event articles of Default shall have occurred incorporation, as then in effect, of each Borrower, certified by the Secretary or would occur and be continuing an Assistant Secretary of such Borrower on the Effective Date;
(ii) Certifying that (A) a certificate of good standing of each Borrower (other than PSI Energy) from its state of incorporation and (B) satisfactory evidence of the representations status of PSI Energy as a duly organized and warranties contained validly existing corporation under the laws of the State of Indiana, dated, in Article 4 are true and correct in all material respects on and each case, as of a recent date;
(iii) the Effective Date (except where such representations and warranties expressly relate to by-laws, as then in effect, of each Borrower, certified by the Secretary or an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as Assistant Secretary of such earlier date and except where such representations and warranties expressly relate to the Closing Date, in which case such representations and warranties shall not be required to be made Borrower on the Effective Date); and;
(iiiiv) Enclosing:
(A) Copies the resolutions of the Board of Directors of each Borrower’s charter and by-laws, certified in each instance by its Secretary, Assistant Secretary or any other Responsible Officer of the Borrower; and
(B) Copies of the resolutions or similar authorizing documentation of the governing body of the Borrower authorizing the execution and delivery of each Financing Document to which it is a party, and the Loan Documentscontinuing performance of the Financing Documents and the Borrowings herein provided for, certified by its a Secretary or Assistant Secretary or any of such Borrower on the Effective Date;
(v) certified copies of all documents evidencing other Responsible Officer necessary corporate action and governmental and regulatory approvals required to be obtained by each Borrower in connection with the execution and delivery of the Borrower.Financing Documents, and the continuing performance of the Financing Documents and the Borrowings herein provided for, certified by the Secretary or an Assistant Secretary of such Borrower on the Effective Date; and
(evi) The Administrative Agent shall have received on a certificate of the Secretary or before an Assistant Secretary of each Borrower, dated the Effective Date, each dated on or, as applicable, prior to such date:
(i) A good standing certificate or similar certificate dated a date reasonably close to the Effective Date from the jurisdiction of formation of the Borrower;
(ii) A customary certificate of the Secretary, Assistant Secretary or another Responsible Officer of the Borrower certifying the names and true signatures of the Borrower’s officers of such Borrower authorized to sign this Agreement and the other documents and instruments contemplated by this Agreement.
(b) The Administrative Agent shall have received the Notes payable by each of the Borrowers to be delivered by the Borrower hereunderorder of each Bank with respect to its proportionate share of the Commitments.
(c) The Administrative Agent shall have received favorable opinions, dated the Effective Date, of:
(i) J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Senior Counsel of the Borrowers, in substantially the form of Exhibit C; and
(iiiii) A favorable opinion letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to LLP, special counsel for the Administrative Agent. , substantially in the form of Exhibit D hereto.
(d) The Borrower hereby requests following statements shall be true and the Administrative Agent shall have received, with a copy for each of the Banks, a certificate of a Responsible Officer of each Borrower, dated as of the Effective Date, stating that:
(i) the representations and warranties set forth in Section 5.1 of this Agreement are true and correct on and as of the Effective Date as though made on and as of such counsel date (except to deliver the extent such opinionrepresentations and warranties expressly relate to another date, in which case such representations and warranties are true as of such other date), and
(ii) no event has occurred and is continuing that constitutes a Default or an Event of Default.
(e) The Borrowers shall have paid all fees under or referenced in Section 2.3 hereof, to the extent then due and payable.
(f) The Administrative Agent commitments of the lenders under the Existing Credit Agreements shall have received a copybeen terminated, certified by no extensions of credit (other than the Borrower Existing Letters of Credit) and signed by a Responsible Officer as true no interest thereon shall be outstanding or other amounts be due and complete, of:
(i) the Agreed Form of Scheme Press Announcement; and
(ii) the executed Transaction Agreementowing thereunder.
(g) The Administrative Agent shall have receivedreceived such other approvals, at least 3 Business Days prior to opinions or documents as any Bank through the Effective Date, so long as requested no less than 10 Business Days prior to the Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Borrower. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in writing promptly upon such conditions precedent being satisfied (or waived by the Required Lenders), and such notice shall be conclusive, binding and finalmay reasonably request.
Appears in 1 contract