Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied: (a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated; (b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent: (i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby; (ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby; (iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and (iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and (c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 8 contracts
Sources: Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Baltimore Gas & Electric Co)
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including is subject to the Commitments of condition precedent that the Lenders and the obligations of the Borrower hereunder) Administrator shall become effective ifhave received, on or before April 15the Closing Date, 2011, all each of the following conditions precedent have been satisfiedfollowing, in form and substance (including the date thereof) reasonably satisfactory to the Administrator:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a A counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to other Transaction Documents executed by the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:parties thereto.
(b) Certified copies of: (i) Certified copies of the resolutions of the Board board of Directors directors or equivalent managing body sole member of the Borrower approving Borrower, the transactions contemplated Originators and the Servicer authorizing the execution, delivery and performance by this Agreement the Borrower, such Originator and the Servicer, as the case may be, of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the other Transaction Documents to which it is a party and (ii) the organizational documents contemplated hereby;of the Borrower, each Originator and the Servicer.
(iic) A certificate of the Secretary or an Assistant Secretary of Borrower the Borrower, the Originators and the Servicer certifying (A) the names and true signatures of the its officers of the Borrower who are authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true Transaction Documents. Until the Administrator and correct copies of the organizational documents of each Group Agent receives a subsequent incumbency certificate from the Borrower, in an Originator or the Servicer, as the case may be, the Administrator and each case in effect Group Agent shall be entitled to rely on the last such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance certificate delivered to it by the Borrower of this Agreement and Borrower, such Originator or the documents contemplated hereby;Servicer, as the case may be.
(iiid) A certificate signed by either Favorable opinions, addressed to the chief financial officerAdministrator and each Group Agent in form and substance reasonably satisfactory to the Administrator and each Group Agent, principal accounting officer of The Law Offices of BosseLaw, PLLC, Cravath, Swaine & ▇▇▇▇▇ LLP or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of Case ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPA Law Corporation, counsel for the Borrower, in form the Originators and substance the Servicer, covering such matters as the Administrator may reasonably acceptable to the Administrative Agent; andrequest, including, without limitation, organizational and enforceability matters and certain bankruptcy matters, certain UCC perfection and priority matters.
(ce) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that Evidence of payment by the Borrower has paid of all accrued and unpaid fees (or will pay with the proceeds of the initial Credit Extensions) all fees andincluding those contemplated by each Group Fee Letter), costs and expenses to the extent billed, expenses then due and payable by the Borrower hereunder on the Effective Date (date thereof, including amounts then payable to the Joint Active Lead Arrangers any such costs, fees and expenses arising under or referenced in Section 6.4 of this Agreement and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify applicable Group Fee Letters.
(f) Good standing certificates with respect to each of the Borrower, the Lenders Originators and the LC Issuers as to Servicer issued by the Effective DateSecretary of State (or similar official) of the state of each such Person’s organization.
Appears in 6 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The obligation of the Lenders each Lender, each LC Issuing Bank and the obligations Swingline Lender to make the initial Extension of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (i) below) for the Swingline Lender, each Lender and each LC Issuing Bank:
(i) Promissory notes payable to the order of each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(ii) (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iii) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; .
(v) A favorable opinion of in-house counsel for the Borrower, substantially in the form of Exhibit D-1 hereto.
(vi) A favorable opinion of special New York counsel for the Borrower, substantially in the form of Exhibit D-2 hereto.
(vii) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, in the form of Exhibit E hereto.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated such date, stating that:
(Ci) that attached thereto The representations and warranties of the Borrower contained in this Agreement are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate effectiveness as though made on and as of such date and date, and
(Bii) no Event of Default or Unmatured Event of Default No event has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; andthat constitutes a Default.
(c) The Borrower and each Lender that is an LC Issuing Bank on such date shall have entered into an LC Issuing Bank Fee Letter.
(d) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent, the Global Coordinator, the Joint Lead Arrangers and the Lenders payable on the date hereof (including the accrued fees and expenses of counsel to the Administrative Agent to the extent then due and payable).
(e) The Administrative Agent shall have received evidenceall documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, satisfactory including without limitation the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders reasonably in advance of the date hereof.
(f) All amounts outstanding under the Existing Credit Agreement, whether for principal, interest, fees or otherwise, shall have been paid in full, all commitments to lend thereunder shall have been terminated, and the Existing Credit Agreement shall have been terminated.
(g) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, that the Borrower has paid (Swingline Lender, any Lender or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, any LC Issuing Bank shall have reasonably requested through the Administrative Agent shall notify reasonably in advance of the Borrower, the Lenders and the LC Issuers as to the Effective Datedate hereof.
Appears in 5 contracts
Sources: Credit Agreement, Credit Agreement, Credit Agreement (Pacificorp /Or/)
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including shall be subject to the Commitments of conditions precedent that the Lenders Lender shall have received, reviewed and the obligations of the Borrower hereunder) shall become effective if, approved on or before April 15the Closing Date the following, 2011, all of each in form and substance reasonably satisfactory to the following conditions precedent have been satisfiedLender:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds each of the initial Credit Extensions) all amounts then payable Facility Documents required to be delivered on the Closing Date and the Intercreditor Agreement duly executed and delivered by the Borrower under the Existing Credit Facility parties thereto, which shall each be in full force and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedeffect;
(b) true and complete copies of the Administrative Agent shall have received Senior Facility Documents, as in effect on the Closing Date;
(c) true and complete copies of the Constituent Documents of each Borrower, Guarantor and Pledgor as in effect on the Closing Date;
(d) a certificate of a Responsible Officer of each Borrower, Guarantor and Pledgor certifying (i) a counterpart of this Agreement signed on behalf of each party hereto or as to such entity’s Constituent Documents, (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory as to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of such entity’s resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate such entity’s board of the Secretary directors or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign members approving this Agreement and the other documents Facility Documents to be delivered hereunder; which such entity is a party and the transactions contemplated hereby and thereby, (Biii) a good standing certificate issued by the secretary of state of such entity’s state of formation, and (iv) as to the incumbency and specimen signature of each of such entity’s Responsible Officers authorized to execute the Facility Documents to which such entity is a party;
(e) a certificate of a Responsible Officer of such Borrower certifying (i) that attached thereto such Borrower’s representations and warranties set forth in the Facility Documents to which such Borrower is a party are true and correct copies in all material respects as of the organizational documents of Closing Date (except to the Borrowerextent such representations and warranties expressly relate to any earlier date, in each which case in effect on such date; representations and (C) that attached thereto are warranties shall be true and correct copies of in all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and material respects as of such date earlier date), and (Bii) that no Event of Default or Unmatured Event of Default has occurred and is continuing on hereunder and no “Default” or “Event of Default” under the date Senior Loan Agreement has occurred and is continuing thereunder;
(i) proper financing statements (or the equivalent thereof in any applicable foreign jurisdiction, as applicable), to be duly filed substantially concurrently with the Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Lender deems necessary or desirable in order to perfect the Lender’s interests in the Collateral contemplated by this Agreement and (ii) all other actions as the Lender shall have requested to perfect the security interests created hereunder shall have been taken;
(g) the “Termination Date” under the Senior Loan Agreement shall not have occurred, and the Senior Loan Agreement shall be in full force and effect;
(h) a favorable written opinion of DLA Piper LLP (US), special counsel for the Borrowers, (A) dated the Closing Date, (B) addressed to the Lender and (C) covering such certificatematters relating to the Facility Documents as the Lender shall reasonably request; and
(ivi) A favorable opinion completion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPsuch know your customer, counsel for background and other checks on the Borrower, in form and substance reasonably acceptable to Borrowers as the Administrative Agent; and
(c) the Administrative Agent Lender shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datereasonably requested.
Appears in 5 contracts
Sources: Mezzanine Loan and Security Agreement (Offerpad Solutions Inc.), Mezzanine Loan and Security Agreement (Offerpad Solutions Inc.), Mezzanine Loan and Security Agreement (Offerpad Solutions Inc.)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below and the General and Refunding Mortgage Bond described in paragraph (viii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Nevada as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Nevada (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents (including, without limitation, the amendment or replacement of the existing General and Refunding Mortgage Bond).
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(viii) The General and Refunding Mortgage Bond referred to in clause (a) of the definition thereof, duly issued and delivered by a duly authorized officer of the Borrower and duly authenticated by the Indenture Trustee.
(A) Certified copies of the General and Refunding Mortgage Indenture as in effect on the Closing Date; (B) an Officer’s Certificate pursuant to a supplemental indenture or board resolution meeting the requirements of Section 4.01(b) of the General and Refunding Mortgage Indenture and setting forth the terms of the General and Refunding Mortgage Bond referred to in paragraph (viii) above; (C) a “Company Order” (as defined in the General and Refunding Mortgage Indenture) requesting authentication of such General and Refunding Mortgage Bond by the Indenture Trustee; and (D) all legal opinions provided in connection with the issuance of such General and Refunding Mortgage Bond, including any provided pursuant to Section 4.01(d) of the General and Refunding Mortgage Indenture.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 5 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co), Credit Agreement (Pacificorp /Or/)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below and the General and Refunding Mortgage Bond described in paragraph (viii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(iii) (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Nevada as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Nevada (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(viii) an Officer’s Certificate pursuant to the authority granted in the Board Resolutions of the Borrower dated as of June 30, 2021, the General and Refunding Mortgage Indenture and the General and Refunding Mortgage Bond, certifying that (A) the Termination Date was extended to June 30, 2024 pursuant to and in accordance with the terms of this Agreement, including any requirements for approval by the lenders under this Agreement, (B) to such Authorized Officer’s knowledge, no Event of Default has occurred and is continuing or would result from the amendment and restatement of the Existing Credit Agreement, and (C) such Authorized Officer has read all of the covenants and conditions contained in the Indenture, and the definitions in the General and Refunding Mortgage Indenture relating thereto, relating to the issuance of the General and Refunding Mortgage Bond and in respect of compliance with which such Officer’s Certificate is made.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 4 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Conditions Precedent to Effectiveness. This Agreement (including shall be effective upon the Commitments satisfaction of the Lenders and conditions precedent that the obligations of the Borrower hereunder) Purchaser shall become effective if, have received on or before April 15the Closing Date, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentPurchaser, all of the following:
(i) Certified copies a copy of resolutions this Agreement duly executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A a certificate of any director, the Secretary or an Assistant Secretary of Borrower the Seller, dated the Closing Date, certifying (A) the names and true signatures of the incumbent directors and/or officers of the Borrower Seller authorized to sign on behalf of the Seller this Agreement Agreement, the Loan Assignments and the all other documents to be delivered hereunder; executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii)), (B) that attached thereto are true the copy of the certificate of incorporation of the Seller is a complete and correct copies copy and that such certificate of the organizational documents of the Borrowerincorporation has not been amended, modified or supplemented and is in each case in effect on such date; full force and effect, (C) that attached thereto the copy of the incorporation documents of the Seller are true a complete and correct copies copy, and that such incorporation documents have not been amended, modified or supplemented and are in full force and effect, and (D) the resolutions of all governmental the board of directors of the Seller approving and regulatory authorizations and approvals required for authorizing the due execution, delivery and performance by the Borrower Seller of this Agreement Agreement, the Loan Assignments and all other documents to be executed by the documents contemplated herebySeller hereunder or in connection herewith;
(iii) A certificate signed a good standing certificate, dated as of a recent date for the Seller, issued by either the chief financial officer, principal accounting officer or treasurer applicable Governmental Authority of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as Seller’s jurisdiction of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andincorporation;
(iv) A favorable opinion filed, original copies of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPproper financing statements (the “Facility Financing Statements”) describing the Sale Portfolio, counsel and naming the Seller as the “Debtor/Seller”, the Purchaser as “Secured Party/Buyer” and the Collateral Agent, for the Borrowerbenefit of the Secured Parties, as “Total Assignee”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Purchaser’s security interest in all Sale Portfolio;
(v) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller;
(vi) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Purchaser and its assigns), dated a date reasonably near to the Closing Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller (under its present name and any previous name) as debtor and which are filed in the District of Columbia, together with copies of such financing statements (none of which shall cover any Sale Portfolio);
(vii) all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser, each Lender Agent and the Administrative Agent; and
(c) , and the Purchaser, each Lender Agent and the Administrative Agent shall have received evidencefrom the Seller copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser, each Lender Agent and the Administrative Agent may have requested;
(viii) any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Administrative Agent, that Purchaser;
(ix) the Borrower has Seller shall have paid all fees then required to be paid by it on the Closing Date; and
(x) one or will pay more favorable Opinions of Counsel from counsel to the Seller with respect to the proceeds perfection and enforceability of the initial Credit Extensions) all fees and, to security interest hereunder and such other matters as the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DatePurchaser or any assignee thereof may reasonably request.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (FS Energy & Power Fund), Purchase and Sale Agreement (FS Investment Corp II), Purchase and Sale Agreement (FS Investment CORP)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders reasonably in advance of the date hereof.
(e) All amounts outstanding under the Existing Credit Agreement, whether for principal, interest, fees or otherwise, shall have been paid in full, all commitments to lend thereunder shall have been terminated, and the Existing Credit Agreement shall have been terminated.
(f) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 3 contracts
Sources: Credit Agreement (Pacificorp /Or/), Credit Agreement (Pacificorp /Or/), Credit Agreement
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of is subject to the following conditions precedent have been satisfiedbeing satisfied on or prior to the date of this Agreement:
(a1) execution and delivery of this Agreement by the Loan Parties, the Agent and each of the Lenders;
(2) the Administrative Agent shall have received evidence, satisfactory to a copy (certified by an authorized officer of the Administrative Agent, that applicable Loan Party) of (i) the Borrower has paid charter documents and by-laws (or will pay with equivalent) of each Loan Party; (ii) the proceeds resolutions of the initial Credit Extensionsboard of directors (or equivalent governing body) of each Loan Party approving the borrowing and other matters contemplated by this Agreement; and (iii) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments other instruments evidencing necessary corporate or other action of each Loan Party with respect to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedsuch matters;
(b3) the Administrative Agent shall have received (i) a counterpart certificate of this Agreement signed on behalf a senior officer of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower Loan Party certifying (A) the names and true signatures of the its officers of the Borrower authorized to sign this Agreement and the Loan Documents to which it is a party;
(4) the Agent shall have received a certificate of status, compliance, good standing or like certificate, if applicable, with respect to each Loan Party issued by the appropriate Governmental Entity in the jurisdiction of its incorporation or formation;
(5) the Agent shall have received favourable opinions of counsel to the Loan Party in the jurisdiction of incorporation of such entity (if applicable) and each other documents relevant jurisdiction covering such matters relating to be delivered hereunder; the Loan Party as the Agent shall reasonably request;
(B6) receipt by the Agent and the Lenders of a Compliance Certificate calculating the financial covenants specified in Section 8.03 herein on a pro forma basis and evidencing compliance by the Parent therewith (using Adjusted EBITDA and Interest Expense for last twelve months ending June 30, 2023 including Funded Debt as of the date hereof);
(7) without limiting Section 6.02, the Agent and the Lenders shall have received a certificate of an officer of the Loan Parties certifying (i) that attached thereto all of the representations and warranties, except where made only as of an earlier date, of the Loan Parties herein are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date Closing Date, and (Bii) that no Event of Default or Unmatured Event of Default has occurred and is continuing or would result from the closing of the transactions contemplated by this Agreement;
(8) all reasonable and documented out-of-pocket fees and expenses (including the reasonable legal fees and disbursements of legal counsel) payable under or in connection with this Agreement shall have been paid in full;
(9) receipt by the Lenders of the most recent Financial Quarter unaudited consolidated financial statements of the Tucows Group and Ting Fiber Group on a Consolidated Basis;
(10) no litigation shall directly or indirectly affect any Tucows Group Entity other than litigation which could not reasonably be expected to result in a Material Adverse Change;
(11) the date Agent and the Lenders shall be satisfied with the organizational and capital structure of the Tucows Group and Ting Fiber Group as at the Closing Date;
(12) the Agent and the Lenders shall be satisfied that, since June 30, 2023, there has not been a Material Adverse Change and they shall be satisfied with the disclosure of the Borrowers and other Loan Parties material contingent obligations since such date;
(13) the Agent shall have received a satisfactory payout letter duly executed by each of Royal Bank of Canada, as agent, in respect of the existing credit facility in favour of certain of the Loan Parties, along with total discharges of, or an undertaking to discharge, any and all security interests related to such facilities previously filed against of the Loan Parties;
(14) all documents and instruments shall have been properly registered, recorded and filed in all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, acknowledgments, undertakings, directions, postponements, subordinations (including in respect of shareholder debt), non-disturbance agreements, control agreements, estoppel letters or certificates, negotiable documents of title and other documents and instruments to the Agent shall have been made which, in the opinion of the Lenders’ counsel, are necessary to make effective the Security created or intended to be created by the Loan Parties pursuant to the Loan Documents and to ensure the perfection and the intended first ranking priority (subject to Permitted Liens) of the Security;
(15) the Agent shall have received evidence of the receipt by the Loan Parties of all necessary consents and approvals required from any creditor, Governmental Entity or other Person for the entry into, execution and delivery of the Loan Documents and the performance of their obligations thereunder, satisfactory to the Agent, acting reasonably;
(16) the Agent and the Lenders shall have received a satisfactory certificate of insurance issued by the Loan Parties’ insurance broker in respect of all policies maintained by the Loan Parties which are, in the case of liability insurance, to name the Agent as an additional insured, mortgagee (or first mortgagee in such jurisdictions where it is conventional to indicate the rank of such certificateinterest) and, in the case of property insurance (excluding accounts receivable insurance), loss payee (or first loss payee in such jurisdictions where it is conventional to indicate the rank of such interest), in Canada and the United States and in other jurisdictions where it is customary to do so in the relevant jurisdiction in which the Loan Party has an insurance policy;
(17) the Agent and the Lenders shall have completed to their satisfaction a due diligence review of the Tucows Group, the Ting Fiber Group and the property, assets and undertakings of each Tucows Group Entity and Ting Fiber Group Entity, including all financial, environmental, legal, know-your-client and anti-money laundering due diligence; and
(iv18) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable receipt by the Borrower hereunder on Agent of any additional disclosure, documents or information that may be reasonably requested by the Effective Date (including amounts then payable to Agent or the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateLenders.
Appears in 3 contracts
Sources: Credit Agreement (Tucows Inc /Pa/), Credit Agreement (Tucows Inc /Pa/), Credit Agreement (Tucows Inc /Pa/)
Conditions Precedent to Effectiveness. This Agreement (including becomes effective upon, and no Lender is obligated to make any Advance, nor is any Lender, the Commitments of Collateral Custodian, the Lenders and Facility Servicer or the obligations of Administrative Agent obligated to take, fulfill or perform any other action hereunder until, the Borrower hereunder) shall become effective if, on or before April 15, 2011, all satisfaction of the following conditions precedent have been satisfiedprecedent:
(a) the Administrative Agent shall have received evidencethis Agreement, satisfactory to the Administrative Agentall other Transaction Documents and all other agreements, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility instruments, certificates and that all commitments to make extensions of credit to the Borrower thereunder other documents listed on Schedule III have been (or concurrently with duly executed by, and delivered to, the initial Advances will be) terminatedparties hereto and thereto;
(b) the Administrative Agent shall Sponsor and each Subsidiary thereof that owns a Specified CLO Asset have received entered into a guaranty (the “Guaranty Agreement”) pursuant to which, among other things, (i) the Sponsor guarantees the Obligations, (ii) the Sponsor and such Subsidiaries agree not to incur any indebtedness (other than indebtedness permitted thereunder), (iii) the Sponsor and such Subsidiaries agree not to create a counterpart Lien on its assets (other than Liens permitted thereunder) and (iv) the Sponsor and such Subsidiaries agree to provide the Lenders with prior notice of any Material CLO Modification;
(c) the Borrower has provided the Facility Servicer and the Initial Lender with a copy of the Valuation Policy as in effect on the Closing Date;
(d) the representations contained in Sections 4.01 and 4.02 are true and correct;
(e) all up-front expenses and fees (including reasonable legal fees and expenses and any fees required under the Fee Letters and Schedule XI) that are required to be paid hereunder or by the Fee Letters and Schedule XI have been paid in full;
(f) the Borrower has received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the other Transaction Documents and all applicable waiting periods have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Borrower or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation is applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect;
(g) no action, proceeding or investigation has been instituted, threatened or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement signed on behalf or the other Transaction Documents or the consummation of each party hereto the transactions contemplated hereby or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of thereby, or which, at the Majority Lenders’ discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement and each or the other Transaction Documents or the consummation of the following documentstransactions contemplated hereby or thereby; and
(h) the Administrative Agent has received all documentation and other information requested by the Administrative Agent acting at the direction of the Majority Lenders or required by regulatory authorities with respect to the Borrower and the Facility Servicer under applicable “know your customer” and anti-money laundering rules and regulations, each dated a date including the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateMajority Lenders.
Appears in 3 contracts
Sources: Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (ACRES Commercial Realty Corp.), Loan and Servicing Agreement (Exantas Capital Corp.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders Amendment and the obligations of the Borrower hereunder) Waiver shall become effective if, on or before April 15, 2011, all the date (the “First Amendment Effective Date”) when each of the following conditions precedent shall have been satisfied:
(i) (a) Company, the Administrative Agent, the 2013 Incremental Term Lenders and the Requisite Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent, (b) Company, the Administrative Agent and each 2013 Incremental Term Loan Lender shall have signed a counterpart (whether the same or different counterparts) of that certain 2013 Incremental Term Loan Commitment Agreement, dated as of the date hereof (the “2013 Incremental Term Loan Commitment Agreement”) and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent and (c) each Subsidiary Guarantor shall have signed a counterpart (whether the same or different counterparts) of an acknowledgement in connection with the 2013 Incremental Term Loan Commitment Agreement and shall have delivered (including by way of facsimile or other electronic transmission) the same to the Administrative Agent;
(ii) the Administrative Agent shall have received evidencefrom Company and each other Loan Party the following:
(a) an officer’s certificate certifying that no amendments, satisfactory modifications or changes have been made to (i) the Certificate or Articles of Incorporation or other appropriate organizational documents of such Loan Party and (ii) the Bylaws or similar organizational documents of such Loan Party, since such documents were delivered to the Administrative AgentAgent on the Closing Date, that together with a good standing certificate from the Borrower has paid (Secretary of State of such Loan Party’s jurisdiction of incorporation or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit formation each dated a recent date prior to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedFirst Amendment Effective Date;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions Resolutions of the Board of Directors or equivalent managing similar governing body of such Loan Party (or other evidence reasonably satisfactory to the Borrower Administrative Agent) approving and authorizing the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance of this Amendment and Waiver and the Amended Credit Agreement, certified as of the First Amendment Effective Date by the Borrower corporate secretary, an assistant secretary or a Responsible Officer of such Loan Party as being in full force and effect without modification or amendment; and
(c) Signature and incumbency certificates of the officers of such Loan Party executing this Agreement Amendment and the documents contemplated herebyWaiver;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are 5 of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of that First Amendment Effective Date to the date of such certificate same extent as though made on and as of that date, except to the extent such date representations and (B) no Event of Default or Unmatured Event of Default has occurred warranties specifically relate to an earlier date, in which case such representations and is continuing warranties shall have been true and correct in all material respects on the date and as of such certificateearlier date; and
(iv) A favorable opinion Company shall have paid (x) for distribution to each Lender which executes and delivers a counterpart of ▇▇▇▇▇▇▇ ▇▇▇▇▇ this Amendment and Waiver by 5:00 p.m. (EDT) on October 10, 2013, an amendment fee equal to 0.10% of the sum of such Lender’s Revolving Loan Exposure plus such Lender’s Term Loan Exposure, in each case, as of the First Amendment Effective Date (prior to giving effect to any Lender’s 2013 Incremental Term Commitment), (y) to Credit Suisse Securities (USA) LLC all fees set forth in the Engagement Letter dated as of October 3, 2013 between the Borrower and Credit Suisse Securities (USA) LLC within the time periods specified therein and (z) to the Administrative Agent for the account of the Administrative Agent all reasonable fees, expenses and other amounts payable to the Administrative Agent in connection with this Amendment and Waiver (including, without limitation, all reasonable legal fees and expenses of White & Case LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable an invoice has been provided to Company prior to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the First Amendment Effective Date).
Appears in 2 contracts
Sources: Credit Agreement (Alliance HealthCare Services, Inc), Credit Agreement (Alliance Health Services Inc)
Conditions Precedent to Effectiveness. This Agreement (including a) The effectiveness of this Amendment is subject to the Commitments satisfaction of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfiedprecedent:
(ai) The Borrower, the Administrative Agent shall have received evidenceGuarantors, satisfactory to the Administrative Agent, that and the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Required Banks shall have executed and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminateddelivered this Amendment;
(bii) the The Administrative Agent shall have received (ia) a counterpart certified copies of resolutions of the boards of directors (or equivalent governing body) of the Parent, the Borrower and each Guarantor authorizing the execution and delivery of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page Amendment and indicating the authorized signers of this AgreementAmendment and the specimen signatures of such signers and (b) that certificates of Good Standing for each party hereto has signed a counterpart Guarantor to the extent relevant;
(iii) The Administrative Agent shall have received an opinion of counsel to the Borrower and each Guarantor in form acceptable to the Administrative Agent and covering such matters relating to the transactions contemplated hereby as the Administrative Agent may request;
(iv) The Borrower shall have paid to each Bank which executed this Amendment on or prior to June 17, 2009 an amendment fee in the amounts as previously agreed to between the Arrangers and the Parent; and
(v) Legal matters incident to the execution and delivery of this Agreement and each of the following documents, each dated a date reasonably Amendment shall be satisfactory to the Administrative Agent and otherwise its counsel. If this Amendment becomes effective, the changes in form the Applicable Margin shall take effect on June 17, 2009 and substance satisfactory to the Administrative Agent:
(i) Certified copies on each day thereafter, but any payment of resolutions of the Board of Directors interest due on or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower after June 17, 2009 with respect to this Agreement and any amounts owing for any period prior thereto shall be computed on the documents contemplated hereby;
(ii) A certificate basis of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case Applicable Margin in effect on prior to such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Dateeffectiveness.
Appears in 2 contracts
Sources: Term Loan Agreement (Jones Lang Lasalle Inc), Multicurrency Credit Agreement (Jones Lang Lasalle Inc)
Conditions Precedent to Effectiveness. This Notwithstanding anything in this Agreement (including to the Commitments of the Lenders and the obligations of the Borrower hereunder) contrary, this Agreement shall not become effective if, on or before April 15, 2011, all until each of the following conditions precedent have has been satisfiedsatisfied or waived in writing by the WIFIA Credit Provider in its sole discretion:
(ai) the Administrative Agent The City shall have received evidence, satisfactory duly executed and delivered to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial WIFIA Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of Provider this Agreement) that each party hereto has signed a counterpart of this Agreement , the Resolution and each of the following documentsISA, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;WIFIA Credit Provider.
(ii) A certificate The City shall have delivered to the WIFIA Credit Provider complete and fully executed copies of each Financing Document, together with any amendments, waivers or modifications thereto, that has been entered into on or prior to the Effective Date, along with a certification in the City Closing Certificate that each such document is complete, fully executed and in full force and effect, and that all conditions contained in such documents that are necessary to the closing of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents WIFIA transactions contemplated hereby;hereby have been fulfilled.
(iii) The City shall have certified to the WIFIA Credit Provider in the City Closing Certificate that each Existing Principal Project Contract is listed on Part A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (ASchedule 12(n) the representations and warranties contained in Section 4.01 are correct each Expected Additional Principal Project Contract is listed on and as Part B of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andSchedule 12(n).
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable Each City Related Party shall have delivered to the Administrative Agent; and
WIFIA Credit Provider (cA) the Administrative Agent shall have received evidencea copy of its Organizational Documents, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder as in effect on the Effective Date (including amounts then payable and certified by the Secretary of State of the State, to the Joint Active Lead Arrangers extent applicable), along with a certification in the City Closing Certificate or the Corporation Closing Certificate, as applicable, that such Organizational Documents are in full force and the Agents). Promptly upon the occurrence thereofeffect, and (B) all further instruments and documents (including any resolutions, ordinances, and supplements) as are necessary for each City Related Party to execute and deliver, and to perform its respective obligations under, the Administrative Agent WIFIA Credit Documents to which it is a party and to consummate and implement the transactions contemplated by the WIFIA Credit Documents.
(v) Counsel to the City shall notify have rendered to the BorrowerWIFIA Credit Provider legal opinions satisfactory to the WIFIA Credit Provider in its sole discretion (including those opinions set forth on Exhibit G-1 (Opinions Required from Counsel to the City)) and counsel to the Corporation shall have rendered to the WIFIA Credit Provider legal opinions satisfactory to the WIFIA Credit Provider in its sole discretion (including those opinions set forth on Exhibit G-2 (Opinions Required from Special Counsel to the Corporation)).
(vi) Each City Related Party shall have delivered to the WIFIA Credit Provider the Non-Debarment Certificate.
(vii) The City shall have delivered to the WIFIA Credit Provider the Non- Lobbying Certificate.
(viii) The Corporation shall have delivered to the WIFIA Credit Provider a certificate, signed by the Lenders Corporation’s authorized representative, substantially in the form attached hereto as Exhibit H-2 (Form of Corporation Closing Certificate) (the “Corporation Closing Certificate”) (A) designating the Corporation’s authorized representative (B) confirming such person’s position and incumbency, and (C) certifying as to certain other matters. The City shall have delivered to the LC Issuers WIFIA Credit Provider a certificate, signed by the City’s Authorized Representative, substantially in the form attached hereto as Exhibit H-1 (Form of City Closing Certificate) (the “City Closing Certificate”) (A) designating the City’s Authorized Representative, (B) confirming such person’s position and incumbency, and (C) certifying as to the satisfaction of the following conditions precedent:
(A) the aggregate of all funds committed to the development and construction of the Project as set forth in the Base Case Financial Model and in the Project Budget are sufficient to carry out the Project, pay all Total Project Costs anticipated for the Project and achieve Substantial Completion by the Projected Substantial Completion Date;
(B) each City Related Party has obtained all Governmental Approvals necessary (x) as of the Effective Date.Date in connection with the Project and
Appears in 2 contracts
Sources: Wifia Credit Agreement, Wifia Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Pacificorp /Or/), Credit Agreement (Pacificorp /Or/)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 157, 20112012, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that (i) the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that Facility, (ii) all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated, and (iii) all obligations under or relating to the Existing Credit Facility shall have been discharged;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby; and (D) that attached thereto is a certificate of good standing certified by the Secretary of State of the State of Illinois dated a recent date prior to the date hereof;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion Favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, outside counsel for the Borrower and of ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President and Deputy General Counsel of Exelon and Assistant Secretary of the Borrower, each in form and substance reasonably acceptable to the Administrative Agent; and;
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents); and
(d) the Administrative Agent and the Lenders shall have received from the Borrower all documentation and other information required by any regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Commonwealth Edison Co)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The effectiveness of the Lenders this Amendment and the obligations of the Borrower hereunder) shall become effective ifAdministrative Agent, on the Collateral Agent, the 2016 Acquisition Term Loan Lenders and the Required Lenders to enter into this Amendment are subject to the satisfaction or before April 15, 2011, all waiver of the following conditions precedent have been satisfiedon or prior to the Third Amendment Effective Date:
(a) the Administrative Agent shall have received evidencean executed original (or photocopy with the original to follow after the Third Amendment Effective Date) of:
(i) the Amendment,
(ii) a solvency certificate from a Financial Officer of Holdings or the Borrower, substantially in the form of Exhibit G hereto,
(iii) the Term Note(s) evidencing the 2016 Acquisition Term Loans, and
(iv) an officer’s certificate, in form and substance reasonably satisfactory to the Administrative Agent, (a) certifying that the Borrower has paid conditions set forth in Section 4(g), Section 4(h)(i), Section 4(i), Section 4(j) and Section 4(k) hereof shall have been satisfied and (or will pay with the proceeds b) attaching an executed copy of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Acquisition Agreement and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedany exhibits, schedules and documents related thereto;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory from or with respect to Holdings and the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentBorrower:
(i) Certified copies of resolutions a copy of the Board certificate or articles of Directors incorporation or equivalent managing body organization, including all amendments thereto, certified as of a recent date by either the Secretary of State of the Borrower approving state of its organization or such Governmental Authority, and, to the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower extent readily available with respect to this Agreement franchise Taxes, a certificate certifying that such Loan Party has paid all franchise Taxes due and payable on or prior to the documents contemplated herebydate of such certificate and such Loan Party is duly organized and in good standing under the laws of such jurisdiction;
(ii) A a certificate of the Secretary, Assistant Secretary or an Assistant Secretary other Responsible Officer of Borrower each Loan Party dated the Third Amendment Effective Date and certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct complete copies of the organizational documents Organizational Documents of the Borrower, in each case such Loan Party as in effect on such date; and the Third Amendment Effective Date, (CB) that attached thereto are is a true and correct copies complete copy of all governmental and regulatory authorizations and approvals required for resolutions duly adopted by the due Governing Body of such Loan Party authorizing the execution, delivery and performance by of the Borrower Loan Documents and, in the case of this Agreement the Borrower, the borrowing of the 2016 Acquisition Term Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the documents contemplated hereby;charter or articles or certificate of incorporation or organization of such Loan Party have not been amended since the date thereof, and (D) as to the incumbency and specimen signature of each officer executing any Loan Documents or any other document delivered in connection herewith on behalf of such Loan Party; and
(iii) A certificate signed by either a certification of another officer as to the chief financial officer, principal accounting officer or treasurer incumbency and specimen signature of the Borrower stating that Secretary or Assistant Secretary executing the certificate pursuant to clause (Aii) above;
(c) prior to the making of the 2016 Acquisition Term Loans, the Administrative Agent shall have received a Notice of Borrowing, substantially in the form of Exhibit C hereto;
(d) the representations Administrative Agent shall have received, on behalf of itself, the Collateral Agent and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A Lenders, a favorable written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the BorrowerLoan Parties (A) dated the Third Amendment Effective Date, in form and substance reasonably acceptable (B) addressed to the Administrative Agent; and, the Collateral Agent and the Lenders, and (C) covering such other matters relating to the Amendment and the Loan Documents as the Administrative Agent shall reasonably request and that are customary to cover in transactions of this type, and the Borrower hereby requests such counsel to deliver such opinions;
(ce) the Lenders shall have received evidence reasonably satisfactory to the Administrative Agent that all existing indebtedness for borrowed money of RunBook and any of its subsidiaries (other than debt permitted under the Credit Agreement) shall have been (or substantially simultaneously with the consummation of the RunBook Acquisition shall be) repaid in full and all commitments to lend or make other extensions of credit thereunder have been terminated and all liens securing such indebtedness or other obligations thereunder have been released and/or terminated (other than liens permitted under the Credit Agreement);
(f) the Borrower shall have paid to the Administrative Agent (i) for the ratable distribution to each 2016 Acquisition Term Loan Lender, the Yield Enhancement Fee pursuant to Section 2.05(b) of the Credit Agreement and (ii) such other amounts due and payable on or prior to the Third Amendment Effective Date that are required to be paid under the Loan Documents, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out of pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document. Once paid, none of the fees shall be refundable under any circumstance or subject to any right of setoff counterclaim or any similar right (each of which is hereby waived by Holdings and the Borrower);
(g) the Administrative Agent shall have received evidence, satisfactory be reasonably satisfied that all of the terms and conditions precedent to the Administrative AgentRunBook Acquisition, other than with respect to the payment of the purchase price and other conditions that by their nature are only satisfied at the closing (other than Section 5.1(h) of the RunBook Acquisition Agreement), have been satisfied in accordance with the RunBook Acquisition Agreement;
(i) the representations and warranties of Holdings and its subsidiaries (other than with respect to RunBook and its subsidiaries) set forth in Article III of the Credit Agreement and in the other Loan Documents and the representations and warranties regarding RunBook in the RunBook Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower has paid or its Affiliates have the right to terminate the Borrower’s or such Affiliates’ obligations under the RunBook Acquisition Agreement (or will pay with the proceeds right not to consummate the RunBook Acquisition) as a result of a breach of such representations and warranties in the RunBook Acquisition Agreement shall, in each case, be true and correct in all material respects on and as of the initial Credit Extensions) all fees andThird Amendment Effective Date to the same extent as though made on and as of that date (or, to the extent billedsuch representations and warranties specifically relate to an earlier date, expenses payable by that such representations and warranties were true and correct in all material respects on and as of such earlier date); provided, that, if a representation and warranty is qualified as to materiality, the applicable materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this Section (4)(j)(i) and (ii) the Borrower hereunder shall have performed in all material respects all agreements and satisfied all conditions which this Amendment provides shall be performed or satisfied by it on or before the Third Amendment Effective Date (including amounts then payable except as otherwise disclosed to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, agreed to in writing by the Administrative Agent or that are otherwise waived;
(i) No “Material Adverse Effect” (as defined in the RunBook Acquisition Agreement) shall notify have occurred between August 16, 2016 and the BorrowerThird Amendment Effective Date;
(j) no Event of Default shall have occurred and be continuing or would result immediately from the consummation of the RunBook Transactions other than an Event of Default arising under Section 7.01(c) with respect to a representation or warranty regarding RunBook or any of its subsidiaries set forth in Article III of the Credit Agreement and in the other Loan Documents; and
(k) Immediately after giving effect to the RunBook Transactions (assuming for purposes of this clause (m) that the RunBook Acquisition has been consummated), the Lenders aggregate amount of unrestricted cash and cash equivalents of the LC Issuers as to the Effective DateBorrower and its subsidiaries, on a consolidated basis, shall be no less than $5,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Blackline, Inc.), Credit Agreement (Blackline, Inc.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfiedsatisfied or waived in accordance with Section 10.01:
(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 Arrangers, the Administrative Agent shall have received evidenceand each of the Lenders:
(i) executed counterparts of this Agreement, satisfactory sufficient in number for distribution to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement Lender and the documents contemplated herebyBorrower;
(ii) A certificate a Note executed by the Borrower in favor of the Secretary each Lender requesting a Note;
(iii) such certificates of resolutions or an Assistant Secretary other action, incumbency certificates and/or other certificates of Borrower certifying (A) the names and true signatures of the officers Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to sign act as a Responsible Officer in connection with this Agreement and the other documents Loan Documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by which the Borrower of this Agreement and the documents contemplated herebyis a party;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A a certificate as to the good standing of the Borrower as of a recent date from the Secretary of State of its jurisdiction of organization;
(v) a favorable opinion of ▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇▇ LLP, counsel for to the Borrower, in form and substance reasonably acceptable addressed to the Administrative AgentAgent and each Lender, substantially in the form set forth in Exhibit F; and
(vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied; (B) except as set forth in the Public Filings, that there has been no event or circumstance since June 30, 2010, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) that there are no actions, suits, investigations or proceedings pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent required to be paid under Section 10.04(a) (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received evidence, satisfactory notice from such Lender prior to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the proposed Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datespecifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Broadcom Corp), Credit Agreement (Broadcom Corp)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on upon satisfaction (or before April 15, 2011, all waiver by the Agent) of the following conditions precedent have been satisfied:
(a) the Administrative precedent: The Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, duly executed, each (unless otherwise specified below) dated a date reasonably satisfactory to the Administrative Agent Closing Date and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies : ▇▇▇▇ executed counterpart of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement Agreement; duly executed Security Documents and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents required to be delivered hereunderthereunder on the Closing Date, including UCC-1 financing statements; (B) that attached thereto are true and correct certified copies of (1) the organizational documents Organization Documents (including any amendments or supplements thereto) of the Borrower, in each case in effect on such date; (2) the resolutions of the board of directors (or similar governing body) of the Borrower authorizing and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for approving the due execution, delivery and performance by the Borrower of this Agreement Agreement, the Security Agreement, and the other Transaction Documents and the Loans hereunder, and otherwise satisfactory to the Agent, and (3) documents contemplated hereby;
(iii) A evidencing all other necessary company action, governmental approvals and third-party consents, if any, with respect to this Agreement, the Security Agreement, and any other Transaction Document; a certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that certifying the names and true signatures of the Responsible Officers of the Borrower authorized to sign this Agreement, the Security Agreement, any other Transaction Document, or any other document to be delivered hereunder or thereunder; certificate evidencing the good standing of the Borrower in its jurisdiction of formation dated a date not earlier than twenty (A20) days prior to the representations Closing Date as to the good standing of the Borrower; the results of tax, judgment and warranties contained ▇▇▇▇ searches on the Borrower, obtained by and satisfactory to the Agent, and dated as of a recent date; the initial rating and confirmation letter as set forth in Section 4.01 are correct on 5(o), which shall be reasonably acceptable to the Agent; LEGAL_US_E # 171549701.1171549701.5 an opinion letter of ▇▇▇▇▇▇ & Bird LLP, primary transaction counsel to the Borrower and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel for to the Borrower, in each case, in form and substance reasonably acceptable satisfactory to the Administrative Agent; and
(c) a true and correct written copy of the Administrative Valuation Methodology in effect on the Closing Date; and such other assurances, certificates, documents, consents, or opinions as the Agent reasonably may request in writing. The Borrower shall have paid all fees and expenses required to be paid by it on the Closing Date in accordance with Section 9(e). The Custody Account shall have been established by the Borrower and the Control Agreement shall have been executed with respect thereto. The Agent shall have received evidence, satisfactory completed its due diligence review with respect to the Administrative AgentBorrower and the Investment Adviser and is satisfied, in its sole and absolute discretion, with the result of its due diligence review, including its due diligence review of the Borrower’s Investment Policies and Restrictions. The Lenders shall have received all documentation and other information that the Lenders have reasonably requested in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. To the extent the Borrower has paid (or will pay with qualifies as a “legal entity customer” under the proceeds of Beneficial Ownership Regulation, the initial Credit Extensions) all fees and, Borrower shall deliver a Beneficial Ownership Certification to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable Agent at least five days prior to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Closing Date.
Appears in 2 contracts
Sources: Credit Agreement (Terra Property Trust, Inc.), Credit Agreement (Terra Income Fund 6, LLC)
Conditions Precedent to Effectiveness. This Agreement (including shall be effective upon the Commitments satisfaction of the Lenders and conditions precedent that the obligations of the Borrower hereunder) Purchaser shall become effective if, have received on or before April 15the Restatement Date, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentPurchaser, all of the following:
(i) Certified copies a copy of resolutions this Agreement duly executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A a certificate of the Secretary or an Assistant Secretary of Borrower the Seller, dated the Restatement Date, certifying (A) the names and true signatures of the incumbent officers of the Borrower Seller authorized to sign on behalf of the Seller this Agreement Agreement, the Second Tier Loan Assignments and the all other documents to be delivered hereunder; executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii)), (B) that the copy of the certificate of formation of the Seller attached thereto are true is a complete and correct copies copy and that such certificate of the organizational documents of the Borrowerformation has not been amended, modified or supplemented and is in each case in effect on such date; full force and effect, (C) that the copy of the amended and restated limited liability company agreement of the Seller attached thereto are true is a complete and correct copies copy, and that such amended and restated limited liability company agreement has not been amended, modified or supplemented and is in full force and effect, and (D) the resolutions of all governmental the board of directors of the Seller attached thereto approving and regulatory authorizations and approvals required for authorizing the due execution, delivery and performance by the Borrower Seller of this Agreement Agreement, the Second Tier Loan Assignments and all other documents to be executed by the documents contemplated herebySeller hereunder or in connection herewith;
(iii) A certificate signed a good standing certificate, dated as of a recent date for the Seller, issued by either the chief financial officer, principal accounting officer or treasurer Secretary of State of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as Seller’s State of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andformation;
(iv) A favorable opinion filed, original copies of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPproper financing statements (the “Facility Financing Statements”) describing the Sale Portfolio, counsel for and naming the BorrowerSeller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Purchaser’s ownership interest in all Sale Portfolio;
(v) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller;
(vi) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Administrative Purchaser and its assigns), dated a date reasonably near to the Restatement Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller (under its present name and any previous name) as debtor and which are filed in the State of Delaware, together with copies of such financing statements (none of which shall cover any Sale Portfolio);
(vii) all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser and the Agent, and the Purchaser and the Agent shall have received from the Seller copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser and the Agent may have reasonably requested;
(viii) any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Purchaser;
(ix) the Seller shall have paid all fees required to be paid by it on the Restatement Date; and
(cx) the Administrative Agent shall have received evidence, satisfactory one or more favorable Opinions of Counsel from counsel to the Administrative Agent, that Seller with respect to the Borrower has paid (or will pay with the proceeds perfection and enforceability of the initial Credit Extensions) all fees and, to security interest hereunder and such other matters as the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DatePurchaser or any assignee thereof may reasonably request.
Appears in 2 contracts
Sources: Omnibus Amendment (Ares Capital Corp), Second Tier Purchase and Sale Agreement (Ares Capital Corp)
Conditions Precedent to Effectiveness. This Agreement (including shall be effective upon the Commitments satisfaction of the Lenders and conditions precedent that the obligations of the Borrower hereunder) Purchaser shall become effective if, have received on or before April 15the Closing Date, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentPurchaser, all of the following:
(i) Certified copies a copy of resolutions this Agreement duly executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A a certificate of a Responsible Officer of the Secretary or an Assistant Secretary Seller, dated as of Borrower the Closing Date, certifying (A) the names and true signatures of the incumbent officers of the Borrower Seller authorized to sign on behalf of the Seller this Agreement Agreement, the Loan Assignments and the all other documents to be delivered hereunder; executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii)), (B) that attached thereto are true the copy of the certificate of incorporation of the Seller is a complete and correct copies copy and that such certificate of the organizational documents of the Borrowerincorporation has not been amended, modified or supplemented and is in each case in effect on such date; full force and effect, (C) that attached thereto the copy of the articles of association and by-laws of the Seller are true complete and correct copies copies, and that such articles of all governmental association and regulatory authorizations by-laws have not been amended, modified or supplemented and approvals required for are in full force and effect, and (D) the due resolutions of the board of directors of the Seller approving and authorizing the execution, delivery and performance by the Borrower Seller of this Agreement Agreement, the Loan Assignments and all other documents to be executed by the documents contemplated herebySeller hereunder or in connection herewith;
(iii) A certificate signed by either copies of financing statements in proper form for filing (the chief financial officer“Facility Financing Statements”) describing the Sale Portfolio, principal accounting officer or treasurer and naming the Seller as the “Debtor/Seller”, the Purchaser as “Assignor Secured Party/Buyer” and the Collateral Agent, for the benefit of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and Secured Parties, as of the date of such certificate as though made on and as of such date and (B) no Event of Default “Assignee Secured Party”, or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrowerother similar instruments or documents, in form and substance reasonably acceptable sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Administrative AgentPurchaser’s ownership interest in all Sale Portfolio;
(iv) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller; and
(cv) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Administrative Agent shall have received evidence, satisfactory Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Administrative AgentPurchaser and its assigns), that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, dated a date reasonably near to the extent billedClosing Date, expenses payable by and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Borrower hereunder on Seller (under its present name and any previous name) as debtor and which are filed in the Effective Date State of Maryland, together with copies of such financing statements (including amounts then payable to the Joint Active Lead Arrangers and the Agentsnone of which shall cover any Sale Portfolio). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 2 contracts
Sources: First Omnibus Amendment (Pennantpark Investment Corp), Purchase and Sale Agreement (Pennantpark Investment Corp)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15May 23, 20112018, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate;
(iv) Any notes requested by a Lender, substantially in the form of Exhibit C; and
(ivv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(cb) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents)Date. Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, Borrower and the Lenders and the LC Issuers as to the Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Atlantic City Electric Co), Credit Agreement (Atlantic City Electric Co)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Amendment shall become effective if, as of the first date (the “Amendment No. 3 Effective Date”) on or before April 15, 2011, all which each of the following conditions precedent have been satisfied:
1. The Administrative Agent (aor its counsel) shall have received (i) from each party hereto either (A) a counterpart of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Administrative Agent (which may include facsimile or pdf transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment, and (ii) duly executed copies (or facsimile or pdf copies) of the Second Canadian Reaffirmation Agreement, the UK Reaffirmation Deed dated as of the Amendment No. 3 Effective Date, and the Second U.S. Reaffirmation Agreement, and such other certificates, documents, instruments and agreements as the Administrative Agent shall reasonably request in connection with the transactions contemplated by this Amendment.
2. The Administrative Agent and the Collateral Agents shall have received evidencewritten opinions of the United States Loan Parties’ counsel and of Canadian Loan Parties’ counsel, satisfactory each addressed to the Administrative Agent, that the Borrower has paid (or will pay with Disbursement Agent, the proceeds Collateral Agents, the Issuing Banks and the Lenders, in each case in form and substance acceptable to the Administrative Agent.
3. The Administrative Agent and the Collateral Agents shall have received copies of the initial most recent financial statements, projections and reports required to be delivered pursuant to Section 5.01 of the Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;Agreement.
(b) the 4. The Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf certificate of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement Loan Party, dated the Amendment No. 3 Effective Date and each of the following documentsexecuted by its Secretary, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Assistant Secretary or an Assistant Secretary of Borrower certifying Director, which shall (A) certify the names and true signatures resolutions of its Board of Directors, members or other body authorizing the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement Amendment and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officerother Loan Documents to which it is a party, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event identify by name and title and bear the signatures of Default or Unmatured Event of Default has occurred the Financial Officers and is continuing on the date any other officers of such certificate; and
Loan Party authorized to sign this Amendment and the Loan Documents to which it is a party, and (ivC) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for to the Borrower, in form and substance reasonably acceptable extent not previously delivered to the Administrative Agent; and
Agent attached to a similar certificate, contain appropriate attachments, including the certificate or articles of incorporation or organization of each Loan Party, together with all amendments thereto, certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws, memorandum and articles of association or operating, management or partnership agreement (cor other equivalent organizational documents), together with all amendments thereto, and (ii) a short form or long form certificate of good standing, status or compliance (or confirmation (including through a legal opinion) that telephonic and online searches have been conducted at the Administrative Agent shall have received evidence, satisfactory English Central Index of Winding Up Petitions and UK Companies House respectively on the Amendment No. 3 Effective Date with respect to the Administrative AgentLoan Parties organized under the laws of England and Wales), that the Borrower has paid (as applicable, together with any bring-down certificates, confirmations or will pay with the proceeds facsimiles, if any, for each Loan Party from its jurisdiction of the initial Credit Extensions) all fees andorganization, each dated a recent date on or prior to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents)Amendment No. Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.3
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Cott Corp /Cn/)
Conditions Precedent to Effectiveness. This Agreement (including The effectiveness of this Amendment is subject to the Commitments truth and accuracy of the Lenders warranties and representations set forth in Sections 4 and 5 below and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all satisfaction of the following conditions precedent have been satisfiedconditions:
(a) the Administrative Agent (or its counsel) and the Noteholders (or their counsel) shall have received evidencethis Amendment, satisfactory to duly executed and delivered by the Issuer, Holdings, the Noteholders constituting the Required Noteholders and the Administrative Agent, that and the Borrower has paid (or will pay with the proceeds Confirmation of the initial Credit Extensions) all amounts then payable Guaranty attached hereto duly executed and delivered by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedGuarantors listed therein;
(b) the Administrative Agent (or its counsel) and the Noteholders (or their counsel) shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each duly executed copy of the following documentsSecond Term Loan Amendment, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement Required Noteholders, and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate a duly executed copy of that certain Amendment no. 1 to the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the BorrowerFirst Lien Intercreditor Agreement, in each case in effect on such date; and the form attached hereto as Exhibit A (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby“ICA Amendment”);
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent (or its counsel) and the Noteholders (or their counsel) shall have received evidence, a certificate of the Secretary or Assistant Secretary of each Note Party in form and substance satisfactory to the Administrative AgentRequired Noteholders, that the Borrower has paid attaching and certifying copies of (x) its bylaws, or partnership agreement or limited liability company agreement (or will pay with certifying that its bylaws, or partnership agreement or limited liability company agreement have not been amended, restated or otherwise modified since the proceeds Original Closing Date), (y) its articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of such Note Party (or certifying that its articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents have not been amended, restated or otherwise modified since the initial Credit ExtensionsOriginal Closing Date), and (z) all fees andthe resolutions of its board of directors or other equivalent governing body, to or comparable organizational documents and authorizations, authorizing the extent billedexecution, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers delivery and performance of this Amendment and the Agents). Promptly upon other Note Documents to which it is a party and certifying the occurrence thereofname, title and true signature of each officer of such Note Party executing this Amendment and the Note Documents to which it is a party;
(d) the Administrative Agent shall notify the Borrower, the Lenders (or its counsel) and the LC Issuers Noteholders (or their counsel) shall have received certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of each Note Party;
(e) the Administrative Agent (or its counsel) and the Noteholders (or their counsel) shall have received a certificate dated as of the Second Amendment Effective Date and signed by a Responsible Officer (i) certifying that immediately after giving effect to the consummation of the transactions contemplated to occur on the Second Amendment Effective Date, (A) no Default or Event of Default exists or will result therefrom, (B) all representations and warranties of each Note Party set forth in the Note Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be true and correct in all respects) and (C) since the date of the financial statements of the Issuer described in Section 4.4 of the Existing Note Purchase Agreement, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect; (ii) confirming that the Note Parties and their Subsidiaries, taken as a whole, are Solvent immediately after giving effect to the consummation of the transactions contemplated to occur on the Second Amendment Effective Date; and (iii) that attaches a duly completed and executed Compliance Certificate addressed to the Administrative Agent but otherwise substantially in the form delivered to the Term Loan Agent on the Second Amendment Effective Date; and
(f) the Administrative Agent and the Noteholders shall have received evidence that all fees, charges and disbursements of counsel to each of the Administrative Agent and the Noteholders have been paid by the Issuer.
Appears in 2 contracts
Sources: Note Purchase Agreement (Root, Inc.), Note Purchase Agreement (Root Stockholdings, Inc.)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(iii) (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Iowa as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Iowa (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) [reserved].
(f) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Conditions Precedent to Effectiveness. This Agreement shall be effective on the date (including the Commitments of the Lenders and the obligations of the Borrower hereunder“Effective Date”) shall become effective if, on or before April 15, 2011, all that each of the following conditions precedent shall have been satisfiedfulfilled:
(a) the Administrative The Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies counterparts of resolutions this Agreement executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A Term Loan Notes executed by the Borrower, payable to each Lender requesting a Term Loan Note and complying with the applicable provisions of Section 2.11.;
(iii) the Guaranty executed by each Subsidiary which is required to be a Guarantor pursuant to Section 4.3., if any, as of the Effective Date, and the Springing Guaranty executed by the Parent;
(iv) the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of the Borrower and each other Loan Party certified by the Secretary of State of the state of formation of such Loan Party;
(v) a certificate of good standing or certificate of similar meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (and any state department of taxation, as applicable) of the state in which such Loan Party has its principal place of business;
(vi) a certificate of incumbency signed by the Secretary or an Assistant Secretary (or other individual performing similar functions) of Borrower certifying (A) each Loan Party with respect to each of the names officers of such Loan Party authorized to execute and true signatures deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, and the officers of the Borrower then authorized to sign this Agreement deliver Notices of Borrowing, Notices of Continuation and Notices of Conversion;
(vii) copies certified by the Secretary or Assistant Secretary (or other documents to be delivered hereunder; individual performing similar functions) of each Loan Party of (Bi) that attached thereto are true and correct copies the by-laws of such Loan Party, if a corporation, the organizational documents operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of the Borrower, in each case in effect on such date; any other form of legal entity and (Cii) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for corporate, partnership, member or other necessary action taken by such Loan Party to authorize the due execution, delivery and performance of the Loan Documents to which it is a party;
(viii) an opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders, in form reasonably satisfactory to the Agent;
(ix) the Fees then due and payable under Section 3.6., and any other Fees payable to the Agent and the Lenders on or prior to the Effective Date to the extent such Fees have been invoiced prior to the Effective Date;
(x) a Compliance Certificate (which for the purposes of the delivery pursuant to this section may be executed by the Borrower executive vice president, general counsel and secretary of the Parent instead of the chief financial officer of the Parent) calculated as of the Effective Date (and giving pro forma effect to the financing evidenced by this Agreement and the documents contemplated herebyuse of the proceeds of the Loans, if any, to be funded on the Effective Date);
(xi) Reserved;
(xii) Reserved;
(xiii) a disbursement statement setting forth in reasonable detail the application of the initial Loans being funded on the Effective Date, if any, and other closing costs and fees;
(xiv) Reserved;
(xv) Reserved; and
(xvi) such other documents, agreements and instruments as the Agent on behalf of the Lenders may reasonably request.
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its other Subsidiaries delivered to the Agent and the Lenders prior to the Effective Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (1) result in a Material Adverse Effect or (2) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and
(iii) A certificate signed the Parent, the Borrower and its other Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or any other Loan Party is a party or by either which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the chief financial officerreceipt, principal accounting officer making or treasurer giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower stating that (A) or any other Loan Party to fulfill its obligations under the representations and warranties contained in Section 4.01 are correct on and as Loan Documents to which it is a party or the ability of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable Agent to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Dateexercise its remedies hereunder.
Appears in 2 contracts
Sources: Term Loan Agreement (Kite Realty Group, L.P.), Term Loan Agreement (Kite Realty Group, L.P.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15October 16, 20112015, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Agreement (after giving effect to the last sentence of Section 2.16.1) and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either any of the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, substantially in the form and substance reasonably acceptable to the Administrative Agentof Exhibit D; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Closing Date (including amounts then payable to the Joint Active Lead Arrangers and the AgentsAdministrative Agent). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers Issuer as to the Effective Closing Date.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including The effectiveness of this Amendment is subject to the Commitments truth and accuracy of the Lenders warranties and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) representations set forth in Sections 5 and 6 below and receipt by the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date reasonably satisfactory to the Administrative Agent and otherwise of which shall be in form and substance satisfactory to the Administrative Agent:
(ia) Certified copies of resolutions of This Amendment, duly executed and delivered by the Board of Directors or equivalent managing body of Borrower, Holdings, the Borrower approving Subsidiary Loan Parties, the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement Lenders and the documents contemplated herebyAdministrative Agent;
(iib) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures dated as of the officers date hereof signed by a Responsible Officer of the Borrower authorized certifying that, immediately before and after giving effect to sign this Agreement and the other documents to be delivered hereunder; Amendment (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (Ai) the representations and warranties contained in Section 4.01 Article IV of the Credit Agreement and the other Loan Documents are true and correct on and as of the date of hereof, except to the extent that such certificate as though made on representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct as of such date earlier date; (ii) since December 31, 2014, there has been no event, development or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (Biii) no Default or Event of Default (other than such Default or Unmatured Event of Default expressly waived by Section 3 above) has occurred and is continuing on as of the date hereof and no Default or Event of Default will exist after giving effect to the amendments contemplated by this Amendment;
(c) For the account of each Lender that has requested a promissory note in respect of such certificate; andLender's Revolving Commitment, a promissory note evidencing such Lender's Revolving Commitment, duly executed by a Responsible Officer of the Borrower;
(ivd) A favorable Reaffirmation of Obligations Under Loan Documents (the "Reaffirmation") dated as of the date hereof duly executed by each Loan Party, in the form of Exhibit I attached hereto
(e) A legal opinion addressed to the Administrative Agent and each of ▇the Lenders from ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Borrower and Holdings, which opinion shall be dated the date hereof and covering such matters relating to the Borrower, Holdings, this Amendment, and the transactions contemplated hereby as the Administrative Agent or the Lenders shall reasonably request;
(f) A certificate, dated as of the date hereof, signed by the Secretary of the Borrower, together with the resolutions of the Borrower in form respect of the authorization and substance reasonably acceptable approval of the transactions contemplated by this Amendment;
(g) Certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under applicable law, if any, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated hereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) The payment of all fees and other amounts due and payable on or prior to the effective date of this Amendment, including (x) reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower and Holdings hereunder and under that certain engagement letter dated February 18, 2016 among the Borrower, Holdings and the Lenders and (y) the fees owing under that certain fee letter dated February 18, 2016 among the Borrower, Holdings and the Lenders; and
(ci) Such other documents as the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datemay reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Perion Network Ltd.), Credit Agreement (Perion Network Ltd.)
Conditions Precedent to Effectiveness. This Agreement Limited Waiver, Release, and Amendment shall be effective on the date (including the Commitments of “Effective Date”) upon which the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all Administrative Agent receives each of the following items (other than the items listed on Schedule 7.1, as revised hereby, which items or conditions precedent have been satisfied:are hereby permitted to be delivered or satisfied after the Effective Date, but not later than the respective dates for delivery or satisfaction specified on Schedule 7.1):
(a) counterparts of this Limited Waiver, Release, and Amendment executed by the Administrative Agent shall have received evidenceCompany, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedLenders;
(b) the Administrative Agent shall have received (i) a counterpart of this Guarantors’ Consent and Agreement signed on behalf of executed by each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyGuarantor;
(iic) A certificate a Revolver Note for each Lender requesting a Note, payable to the order of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrowersuch requesting Lender, in each case in effect on reflecting such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated herebyLender’s revised Commitment;
(iiid) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion legal opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of Vail Resorts, Inc., and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel for to the BorrowerCompany and the other Restricted Subsidiaries, each in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent;
(e) an Officers’ Certificate for the Restricted Companies (i) attaching resolutions authorizing the transactions contemplated hereby, (ii) certifying that no changes have been made to the Borrower has paid Restricted Companies’ respective articles of incorporation or organization, bylaws, or operating agreements since the date such documents were previously provided to the Administrative Agent, as applicable, (or will pay with iii) listing the proceeds names and titles of the initial Credit ExtensionsResponsible Officers, and (iv) providing specimen signatures for such Responsible Officers;
(f) a certificate signed by a Responsible Officer certifying that (i) all fees andof the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (unless they speak to a specific date or are based on facts which have changed by transactions contemplated or permitted by the Credit Agreement); (ii) no Default or Potential Default exists under the Credit Agreement or would result from the execution and delivery of this Limited Waiver, Release, and Amendment; (iii) there has been no event or circumstance since July 31, 2006 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event; and (iv) except as set forth on Schedule 8.7 of the Credit Agreement, there is no action, suit, investigation, or proceeding pending or, to the extent billedknowledge of Borrower, expenses payable threatened, in any court or before any arbitrator or Governmental Authority that could reasonably be expected to (A) materially and adversely affect the Companies, or (B) adversely affect any transaction contemplated by the Borrower hereunder on Credit Agreement, the rights and remedies of the Administrative Agent, Lenders, and the L/C Issuers under the Credit Agreement, or the ability of the Companies or any other obligor under any Guaranty to perform their respective obligations under the Credit Agreement;
(g) evidence (in form and substance satisfactory to the Administrative Agent) that the Commitment Usage does not exceed the Total Commitment (as reduced hereby);
(h) such organizational documents, Guaranties, Pledge Agreements, financing statements, and other documents as the Administrative Agent may deem reasonably necessary to reflect the changes to Schedule 8.2 (including, without limitation, the addition of NPHC as a Restricted Subsidiary); and
(i) payment of an extension fee for the benefit of the Lenders equal to the product of (a) five basis points (0.05%) times (b) the Total Commitment as of the Effective Date (including amounts then payable after giving effect to the Joint Active Lead Arrangers reduction in the Total Commitment contemplated by this Limited Waiver, Release, and the AgentsAmendment). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 2 contracts
Sources: Fourth Amended and Restated Credit Agreement (Vail Resorts Inc), Fourth Amended and Restated Credit Agreement (Vail Resorts Inc)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The amendment and restatement of the Lenders and the obligations of the Borrower hereunder) Original Agreement effected by this Agreement shall become effective if, on or before April 15, 2011, all subject to the satisfaction of the following conditions precedent have been satisfiedconditions:
(ai) This Agreement, the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Services Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent Custodian Agreement shall be in full force and otherwise effect and shall be in form and substance satisfactory to the Administrative Agent:Insurer and an executed counterpart of each such agreement shall have been delivered to the Insurer;
(iii) Certified Each of the following agreements with respect to each PPF shall be in full force and effect, shall be in form and substance satisfactory to the Insurer and an executed counterpart of each such agreement shall have been delivered to the Insurer: the Investment Management Agreement with ING, the Sub-Adviser Agreement with Aeltus, the Expense Limitation Agreement with ING and Aeltus and the Custodian Service and Monitoring Agreement;
(iii) The Insurer and the Fund shall have received (1) a certificate of the Secretary or Assistant Secretary of ING, dated as of the Effective Date, as to the incumbency and signature of the officers or other employees of ING authorized to sign this Agreement, the Administrative Services Agreement and the Investment Management Agreement, the Expense Limitation Agreement and the Sub-Adviser Agreement with respect to each PPF on behalf of ING, together with evidence of the incumbency of such Secretary or Assistant Secretary, certified by the Secretary or Assistant Secretary of ING, and (2) a certificate of the Secretary or Assistant Secretary of Aeltus, dated as of the Effective Date, as to the incumbency and signature of the officers or other employees of Aeltus authorized to sign this Agreement and the Expense Limitation Agreement and the Sub-Adviser Agreement with respect to each PPF on behalf of Aeltus, together with evidence of the incumbency of such Secretary or Assistant Secretary, certified by the Secretary or Assistant Secretary of Aeltus;
(iv) The Insurer, ING and Aeltus shall have received a certificate of the Secretary or Assistant Secretary of the Fund, dated as of the Effective Date, as to the incumbency and signature of the officers or other employees of the Fund authorized to sign this Agreement, the Administrative Services Agreement, the Custodian Agreement and the Investment Management Agreement, the Expense Limitation Agreement and the Custodian Service and Monitoring Agreement with respect to each PPF on behalf of the Fund, together with evidence of the incumbency of such Secretary or Assistant Secretary, certified by the Secretary or Assistant Secretary of the Fund;
(v) ING, Aeltus and the Fund shall have received a certificate of the Secretary or Assistant Secretary of the Insurer, dated as of the Effective Date, as to the incumbency and signature of the officers or other employees of the Insurer authorized to sign this Agreement on behalf of the Insurer, together with evidence of the incumbency of such Secretary or Assistant Secretary, certified by the Secretary or Assistant Secretary of the Insurer;
(vi) The Insurer shall have received (1) a certificate of the Secretary or Assistant Secretary of ING, dated as of the Effective Date, certifying that attached thereto are true, complete and correct copies of the resolutions of duly adopted by the Board of Directors or equivalent managing body of ING authorizing the execution of this Agreement and all other Transaction Documents to which ING is a party, and (2) a certificate of the Borrower approving Secretary or Assistant Secretary of Aeltus, dated as of the Effective Date, certifying that attached thereto are true, complete and correct copies of the resolutions duly adopted by the Board of Directors of Aeltus authorizing the execution of this Agreement and all other Transaction Documents to which Aeltus is a party;
(vii) The Insurer shall have received certificates of the Secretary or Assistant Secretary of the Fund, dated as of the Effective Date, certifying that attached thereto are true, complete and correct copies of resolutions duly adopted by the Board of Directors of the Fund authorizing the creation of each PPF and the execution of this Agreement and all Transaction Documents to which it is a party;
(viii) Each party to this Agreement shall have received the following executed legal opinions, in form and substance satisfactory to each of the parties hereto, dated the Effective Date:
(A) the opinion of Dechert, as counsel to ING, substantially to the effect set forth in Exhibit I-1;
(B) the opinion of counsel to Aeltus, substantially to the effect set forth in Exhibit I-2;
(C) the opinion of an Associate General Counsel and Vice President of the Insurer, substantially to the effect set forth in Exhibit J;
(D) the opinion of Dechert, as counsel to the Fund, substantially to the effect set forth in Exhibit K; and
(E) the opinion of an Assistant General Counsel of State Street Bank and Trust Company, substantially to the effect set forth in Exhibit L.
(ix) The Insurer shall have received a copy of the Articles of Amendment and Restatement and of the Articles Supplementary with respect to each PPF, certified by the State Department of Assessments and Taxation of Maryland;
(x) All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Insurer, and the Insurer shall have received such other documents and legal opinions in respect of all documents evidencing other necessary organizational action any aspect or consequence of the Borrower with respect to this Agreement and the documents transactions contemplated herebyhereby or thereby as it shall reasonably request;
(iixi) A certificate Each of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained made by ING, Aeltus and the Fund in Section 4.01 are or pursuant to the Transaction Documents shall be true and correct in all material respects on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificateEffective Date; and
(ivxii) A favorable opinion No Default or Event of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent Default shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder occurred and be continuing on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 2 contracts
Sources: Financial Guaranty Agreement (Ing Series Fund Inc), Financial Guaranty Agreement (Ing Series Fund Inc)
Conditions Precedent to Effectiveness. This Agreement (including The effectiveness of this Amendment is subject to the Commitments truth and accuracy of the Lenders warranties and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) representations set forth in Sections 5 and 7 below and receipt by the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date reasonably satisfactory to the Administrative Agent and otherwise of which shall be in form and substance satisfactory to the Administrative Agent:
(ia) Certified copies of resolutions of This Amendment, duly executed and delivered by the Board of Directors or equivalent managing body of Borrower, Holdings, the Borrower approving Subsidiary Loan Parties, the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement Required Lenders and the documents contemplated herebyAdministrative Agent;
(iib) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures dated as of the officers date hereof signed by a Responsible Officer of the Borrower authorized certifying that, immediately before and after giving effect to sign this Agreement and the other documents to be delivered hereunder; Amendment (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (Ai) the representations and warranties contained in Section 4.01 Article IV of the Credit Agreement and the other Loan Documents are true and correct on and as of the date of hereof, except to the extent that such certificate as though made on representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct as of such date earlier date; (ii) since December 31, 2015, there has been no event, development or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (Biii) no Default or Event of Default (other than such Default or Unmatured Event of Default expressly waived by Section 3 above) has occurred and is continuing on as of the date hereof and no Default or Event of such certificateDefault will exist after giving effect to the amendments contemplated by this Amendment;
(c) A certified copy of resolutions adopted by the Board of Directors of the Borrower authorizing and approving the transactions contemplated by this Amendment;
(d) Evidence that the Borrower shall have received an indirect cash equity contribution from the Parent immediately prior to the effectiveness of this Amendment in the amount of $4,000,000 and payment by the Borrower in an amount equal to $2,000,000 in immediately available funds to be applied as a prepayment to the outstanding principal amount of the Term Loans in accordance with Section 6 of this Amendment;
(e) A Reaffirmation of Obligations Under Loan Documents (the "Reaffirmation") dated as of the date hereof duly executed by each Loan Party and the Parent, in the form of Exhibit I attached hereto;
(f) The payment of all fees and other amounts due and payable on or prior to the effective date of this Amendment, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment and the other documents and agreements executed and delivered in connection herewith) required to be reimbursed or paid by the Borrower and Holdings hereunder; and
(ivg) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) Such other documents as the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datemay reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Perion Network Ltd.), Credit Agreement (Perion Network Ltd.)
Conditions Precedent to Effectiveness. This Agreement (including shall be effective upon the Commitments satisfaction of the Lenders and conditions precedent that the obligations of the Borrower hereunder) Contributee shall become effective if, have received on or before April 15the Closing Date, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentContributee, all of the following:
(i) Certified copies a copy of resolutions this Agreement duly executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A a certificate of the Secretary or an Assistant Secretary of Borrower the Contributor, dated the Closing Date, certifying (A) the names and true signatures of the incumbent officers of the Borrower Contributor authorized to sign on behalf of the Contributor this Agreement Agreement, the Loan Assignments and the all other documents to be delivered hereunder; executed by the Contributor hereunder or in connection herewith (on which certificate the Contributee and its assignees may conclusively rely until such time as the Contributee and such assignees shall receive from the Contributor, a revised certificate meeting the requirements of this Section 3.1(ii)), (B) that attached thereto are true the copy of the certificate of incorporation of the Contributor is a complete and correct copies copy and that such certificate of the organizational documents of the Borrowerincorporation has not been amended, modified or supplemented and is in each case in effect on such date; full force and effect, (C) that attached thereto the copy of the by-laws of the Contributor are true a complete and correct copies copy, and that such by-laws have not been amended, modified or supplemented and are in full force and effect, and (D) the resolutions of all governmental the board of directors of the Contributor approving and regulatory authorizations and approvals required for authorizing the due execution, delivery and performance by the Borrower Contributor of this Agreement Agreement, the Loan Assignments and all other documents to be executed by the documents contemplated herebyContributor hereunder or in connection herewith;
(iii) A certificate signed a good standing certificate, dated as of a recent date for the Contributor, issued by either the chief financial officer, principal accounting officer or treasurer Secretary of State of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as Contributor’s State of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andincorporation;
(iv) A favorable opinion filed, original copies of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPproper financing statements (the “Facility Financing Statements”) describing the Contributed Portfolio, counsel and naming the Contributor as the “Debtor/Contributor”, the Contributee as “Secured Party/Contributee” and the Collateral Agent, for the Borrowerbenefit of the Secured Parties, as “Total Assignee”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Contributee’s ownership interest in all Contributed Portfolio;
(v) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Contributed Portfolio previously granted by the Contributor;
(vi) requests for information and copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Contributee or its assignees (or a similar UCC search report certified by a party acceptable to the Contributee and its assigns), dated a date reasonably near to the Closing Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Contributor (under its present name and any previous name) as debtor and which are filed in the State of Maryland, together with copies of such financing statements (none of which shall cover any Contributed Portfolio);
(vii) all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Contributee, each Lender Agent, the Collateral Agent, the Backup Servicer and the Administrative Agent; and
(c) , and the Contributee, each Lender Agent, the Collateral Agent, the Backup Servicer and the Administrative Agent shall have received evidencefrom the Contributor copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Contributee, each Lender Agent, the Collateral Agent, the Backup Servicer and the Administrative Agent may have reasonably requested;
(viii) any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Administrative Agent, that Contributee;
(ix) the Borrower has Contributor shall have paid all fees then required to be paid by it on the Closing Date; and
(x) one or will pay more favorable Opinions of Counsel from counsel to the Contributor with respect to the proceeds perfection and enforceability of the initial Credit Extensions) all fees and, to security interest hereunder and such other matters as the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateContributee or any assignee thereof may reasonably request.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (Solar Senior Capital Ltd.)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(iii) (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) [reserved].
(f) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Eighth Amendment shall become effective if, on or before April 15, 2011, all as of the date hereof only upon satisfaction of the following conditions precedent have been satisfiedprecedent:
(a) the due execution and delivery of a counterpart signature page to this Eighth Amendment by each of Borrower, Guarantor, the undersigned Lender (constituting all Lenders under the Credit Agreement as of the Eighth Amendment Effective Date), Administrative Agent shall have received evidence, satisfactory to the Administrative and Hermes Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) receipt by Administrative Agent of a duly executed copy of (i) the New Foresight Energy Secured Credit Agreement, which shall have been amended and restated on terms reasonably satisfactory to Administrative Agent and (ii) such other agreements evidencing the Refinancing as Administrative Agent shall have received reasonably request;
(ic) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the receipt by Administrative Agent and otherwise Hermes Agent of the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) Certified copies of each Organizational Document of each of the Credit Parties, in form and substance reasonably satisfactory to Administrative Agent, executed and delivered by each Credit Party and certified as of the Execution Date by a Responsible Officer of such Credit Party as being in full force and effect without modification or amendment;
(ii) signature and incumbency certificates of the Responsible Office of each Credit Party executing this Eighth Amendment;
(iii) resolutions of the Board of Directors or equivalent managing similar governing body of each Credit Party approving and authorizing the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement Eighth Amendment and the agreements executed and documents contemplated herebydelivered in connection herewith, certified as of the Eight Amendment Effective Date by a Responsible Officer of each Credit Party as being in full force and effect without modification or amendment;
(iiiiv) A a good standing certificate signed from the applicable Governmental Authority of each Credit Party’s jurisdiction of formation dated a recent date;
(d) receipt by either the chief financial officer, principal accounting officer or treasurer Administrative Agent and Hermes Agent of an acknowledgment from Hermes of the amendments contemplated by this Eighth Amendment, which acknowledgment shall be in form and substance satisfactory to Administrative Agent and Hermes Agent;
(e) receipt by Administrative Agent of reasonably requested “know your customer” materials and documentation;
(f) Borrower stating that shall have paid to the Administrative Agent on the Effective Date, for the ratable benefit of the undersigned Lender (A) constituting all Lenders under the representations and warranties contained in Section 4.01 are correct on and Credit Agreement as of the date Effective Date), a work fee in the amount of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate$100,000; and
(ivg) A favorable opinion receipt by Administrative Agent and the undersigned Lender (constituting all Lenders under the Credit Agreement as of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPthe Eighth Amendment Effective Date) of the reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses incurred by it or any of its Affiliates in connection with the preparation, counsel for the Borrowernegotiation and execution of this Eighth Amendment or any document, in form instrument, agreement delivered pursuant to this Eighth Amendment, and substance reasonably acceptable to the Administrative Agent; and
(c) all other reasonable and documented costs and expenses of the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds described in Section 12.8.1 of the initial Credit Extensions) all fees andAgreement, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date invoiced at least two (including amounts then payable 2) Business Days prior to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Eighth Amendment Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Foresight Energy LP), Credit Agreement (Foresight Energy LP)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Amendment No. 6 shall become effective if, on or before April 15, 2011, all when each of the following conditions precedent have been satisfiedis met to the satisfaction of the Agent:
(a) receipt by the Administrative Agent shall have received evidenceof this Amendment No. 6 duly and properly authorized, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds executed and delivered by each of the initial Credit Extensions) all amounts then payable by Borrowers and the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedLenders;
(b) receipt by the Administrative Agent of a Compliance Certificate demonstrating compliance with the financial covenants contained in Section 10 of the Credit Agreement as of December 31, 2007;
(c) receipt by the Agent of an officers’ or manager’s certificate dated as of the date hereof signed by an officer or manager, as applicable, of each Borrower certifying as to such matters as the Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement require and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of attaching authorizing resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyAmendment No. 6;
(iid) A certificate receipt by the Agent of title reports as of a recent date on each of the Secretary or an Assistant Secretary of Borrower certifying (A) the names Eligible Unencumbered Properties evidencing no Liens thereon and true signatures evidencing a recorded Negative Pledge Agreement in favor of the officers of the Borrower authorized Agent with respect to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated herebyEligible Unencumbered Property;
(iiie) A certificate signed receipt by either the chief financial officer, principal accounting officer or treasurer Agent of each of the Borrower stating that items set forth on the Closing Agenda attached hereto as Annex 1;
(Af) receipt by the representations and warranties contained in Section 4.01 are correct on and as Agent of payment of the date extension fees payable for the benefit of such certificate as though made on the Lenders signatory hereto, which fee shall be fully-earned upon the effectiveness hereof and as shall be non-refundable for any reason;
(g) receipt by the Agent of such date payment of any other fees due to the Agent, including all of the Agent’s reasonable legal fees and (B) no Event expenses incurred in the connection with the preparation and negotiation of Default this Amendment No. 6 or Unmatured Event of Default has occurred and is continuing on the date of such certificateotherwise outstanding; and
(ivh) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable receipt by the Borrower hereunder on Agent of any other documents, agreements, certificates or other items requested by the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents)Agent in connection with this Amendment No. Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date6.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Whitestone REIT), Revolving Credit Agreement (Whitestone REIT)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(iii) (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Iowa as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Iowa (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Conditions Precedent to Effectiveness. This Agreement (including The effectiveness of this Amendment is subject to the Commitments truth and accuracy of the Lenders warranties and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) representations set forth in Sections 5 and 7 below and receipt by the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date reasonably satisfactory to the Administrative Agent and otherwise of which shall be in form and substance satisfactory to the Administrative Agent:
(ia) Certified copies of resolutions of This Amendment, duly executed and delivered by the Board of Directors or equivalent managing body of Borrower, Holdings, the Borrower approving Subsidiary Loan Parties, the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement Required Lenders and the documents contemplated herebyAdministrative Agent;
(iib) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures dated as of the officers date hereof signed by a Responsible Officer of the Borrower authorized certifying that, immediately before and after giving effect to sign this Agreement and the other documents to be delivered hereunder; Amendment (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (Ai) the representations and warranties contained in Section 4.01 Article IV of the Credit Agreement and the other Loan Documents are true and correct on and as of the date of hereof, except to the extent that such certificate as though made on representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct as of such date earlier date; (ii) since December 31, 2014, there has been no event, development or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (Biii) no Default or Event of Default (other than such Default or Unmatured Event of Default expressly waived by Section 3 above) has occurred and is continuing on as of the date hereof and no Default or Event of such certificateDefault will exist after giving effect to the amendments contemplated by this Amendment;
(c) A Reaffirmation of Obligations Under Loan Documents (the "Reaffirmation") dated as of the date hereof duly executed by each Loan Party, in the form of Exhibit I attached hereto;
(d) The payment of all fees and other amounts due and payable on or prior to the effective date of this Amendment, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment and the other documents and agreements executed and delivered in connection herewith) required to be reimbursed or paid by the Borrower and Holdings hereunder; and
(ive) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) Such other documents as the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datemay reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Perion Network Ltd.), Credit Agreement (Perion Network Ltd.)
Conditions Precedent to Effectiveness. This (a) The effectiveness of this Agreement (including is subject to the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all satisfaction of the following conditions precedent have been satisfiedconditions:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this The Transaction Documents and the Custodian Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement shall be in full force and each of effect and the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise Transaction Documents shall be in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of Insurer and each Transaction Document shall have been delivered to the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyInsurer;
(ii) A The Insurer and the Fund shall have received a certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) Aeltus, as to the names incumbency and true signatures signature of the officers or other employees of the Borrower Aeltus authorized to sign this Agreement and the other documents Transaction Document to be delivered hereunder; which it is a party on behalf of Aeltus, together with evidence of the incumbency of such Secretary or Assistant Secretary, certified by the Secretary or Assistant Secretary of Aeltus;
(Biii) The Insurer and Aeltus shall have received a certificate of the Secretary or Assistant Secretary of the Fund as to the incumbency and signature of the officers or other employees of the Fund authorized to sign this Agreement and the Transaction Documents to which it is a party on behalf of the Fund, together with evidence of the incumbency of such Secretary or Assistant Secretary, certified by the Secretary or Assistant Secretary of the Fund;
(iv) Aeltus and the Fund shall have received a certificate of the Secretary or Assistant Secretary of the Insurer as to the incumbency and signature of the officers or other employees of the Insurer authorized to sign this Agreement on behalf of the Insurer, together with evidence of the incumbency of such Secretary or Assistant Secretary, certified by the Secretary or Assistant Secretary of the Insurer;
(v) The Insurer shall have received certificates of the Secretary or Assistant Secretary of Aeltus certifying that attached thereto are true true, complete and correct copies of the organizational documents resolutions duly adopted by the Board of Directors of Aeltus authorizing the execution of this Agreement and all Transaction Documents to which Aeltus is a party;
(vi) The Insurer shall have received certificates of the Borrower, in each case in effect on such date; and (C) Secretary or Assistant Secretary of the Fund certifying that attached thereto are true true, complete and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance resolutions duly adopted by the Borrower Board of Directors of the Fund authorizing the execution of this Agreement and all Transaction Documents to which it is a party;
(vii) Each party to this Agreement shall have received the following executed legal opinions, in form and substance satisfactory to each of the parties hereto:
(A) the opinion of ▇▇▇ ▇. Doberman, Esq., counsel to Aeltus, substantially to the effect set forth in Exhibit D.
(B) the opinion of ____________________, __________________ of the Custodian, substantially to the effect set forth in Exhibit E.
(C) the opinion of _____________________, Associate General Counsel and Vice President of the Insurer, substantially to the effect set forth in Exhibit F.
(D) the opinion of ▇▇▇ ▇. Doberman, Esq., Counsel to the Fund, substantially to the effect set forth in Exhibit G.
(viii) All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Insurer, and the Insurer shall have received such other documents and legal opinions in respect of any aspect or consequence of the transactions contemplated herebyhereby or thereby as it shall reasonably request.
(b) The obligation of the Insurer to issue each Policy is subject to the satisfaction of the following conditions on the Inception Date with respect to the related PPF:
(i) The registration statement with respect to such PPF shall have been filed with and declared effective by the U.S. Securities and Exchange Commission, and a copy of each prospectus and statement of additional information shall have been delivered to the Insurer;
(ii) The Insurer shall have received a certificate of the Secretary or Assistant Secretary of the Fund dated as of such Inception Date certifying that attached thereto are true, complete and correct copies of the resolutions duly adopted by the Board of Directors authorizing the creation of such PPF;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer Each of the Borrower stating that (A) the representations and warranties contained made by Aeltus and the Fund in Section 4.01 are or pursuant to the Transaction Documents shall be true and correct on and as of the date of such certificate as though made in all material respects on and as of such date and date;
(Biv) no No Default or Event of Default or Unmatured Event of Default has shall have occurred and is be continuing on such date;
(v) No statute, rule, regulation or order shall have been enacted, entered or deemed applicable by any Government Authority which would make the date transactions contemplated by any of such certificatethe Transaction Documents illegal or otherwise prevent the consummation thereof; and
(ivvi) A favorable opinion All proceedings, and all documents, instruments and other legal matters in connection with the creation of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, such PPF shall be satisfactory in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateInsurer.
Appears in 2 contracts
Sources: Financial Guaranty Agreement (Aetna Series Fund Inc), Financial Guaranty Agreement (Aetna Series Fund Inc)
Conditions Precedent to Effectiveness. This Amendment Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, as of the date on or before April 15, 2011, all of which the following conditions precedent have been satisfied:satisfied in a manner satisfactory to the Initial Lender (such date, the “Effective Date”):
(a) the Administrative Agent shall have The Initial Lender has received evidencecounterparts of this Amendment Agreement, satisfactory to the Administrative Agentduly executed and delivered, that the Borrower has paid (or will pay with the proceeds from all of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedparties hereto;
(b) the Administrative Agent shall have The Initial Lender has received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable satisfactory to the Administrative AgentInitial Lender, covering such matters as the Initial Lender may reasonably request;
(c) The Initial Lender has received a certificate of the Borrower signed by an Authorized Officer of the Borrower (A) certifying and attaching the resolutions of the board of managers or directors (or similar items) of the Borrower approving or consenting to this Amendment Agreement and the increase to the Total Term Commitment, (B) attaching charter (or similar formation documents), certified by the appropriate Governmental Authority, (C) attaching bylaws (or similar governing documents), (D) attaching good standing certificates in its state of incorporation (or formation) and (E) certifying that the representations and warranties contained in Article IV of this Amendment Agreement are true and correct;
(d) The Initial Lender shall have received such other documents as the Initial Lender may have reasonably requested; and
(ce) All fees hereunder or under the Administrative Agent shall have received evidence, satisfactory Credit Agreement due and owing on or prior to the Administrative Agent, that the Borrower has date of this Amendment Agreement have been paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datein full.
Appears in 2 contracts
Sources: Credit Agreement (Owl Rock Technology Finance Corp.), Credit Agreement (Owl Rock Technology Finance Corp.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Amendment shall become effective if, on or before April 15, 2011, all as of the following conditions precedent date of this Amendment when, and only when, Administrative Agent shall have been satisfiedreceived the following, in form and substance satisfactory to Administrative Agent:
(a) counterparts of this Amendment, duly executed each Borrower, Agents and the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedLenders;
(b) the Administrative Agent shall have received Ratification and Reaffirmation of Guaranty and Pledge Agreement, duly executed by TerrAscend Guarantors;
(c) a duly executed A▇▇▇▇▇▇ and Restated Collateral Assignment of Licensing Contracts among Credit Parties, the other parties party thereto and Collateral Agent;
(d) a certificate for each Borrower and each TerrAscend Guarantor, duly executed and delivered by an Authorized Officer of each such Person, as to: (i) a counterpart of this Agreement signed on behalf resolutions of each party hereto such Person’s board of managers/directors (or (ii) written evidence (which may include electronic transmission other managing body, in the case of a signed signature page of this AgreementPerson that is not a corporation) that each party hereto has signed a counterpart of this Agreement then in full force and each effect expressly and specifically authorizing, to the extent relevant, all aspects of the following documents, each dated a date reasonably satisfactory Credit Documents applicable to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement such Person and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance of each Credit Document, in each case, to be executed by such Person; (ii) the Borrower incumbency and signatures of this Agreement its Authorized Officers and the documents contemplated hereby;
any other of its officers, members, managers or general partner, as applicable, authorized to act with respect to each Credit Document to be executed by such Person; (iii) A certificate signed by either the chief financial officereach such Person’s Organization Documents, principal accounting officer as amended, modified or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and supplemented as of the date hereof, certified by the appropriate officer or official body of the jurisdiction of organization of such certificate as though made on Person, or, for each of clauses (i), (ii) and as (iii) above, a confirmation that such documents have not changed since the most recent certification to Administrative Agent and (iv) certificates of good standing or letter of status (or the local equivalent thereof, if applicable) with respect to such Person, each dated within a recent date prior to the date hereof, such certificates to be issued by the appropriate officer or official body of the jurisdiction of organization of such date Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
(e) payment in cash by Borrowers of (i) all amendment and closing fees, (Bii) no Event of Default or Unmatured Event of Default has occurred existing Indebtedness and is continuing fees owing to Lenders on the date hereof under the Existing Credit Agreement, (iii) all costs and expenses incurred by Agents in connection with the preparation, execution, and delivery of such certificate; and
this Amendment and each other Credit Documents executed in connection herewith or relating hereto and (iv) A favorable opinion all other costs and expenses due and payable to any Agent pursuant to Section 12.05 of the Credit Agreement (including the fees, disbursements and other charges of counsel to Agents as provided therein), in each case, as set forth in that certain Disbursement Letter duly executed by B▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable ;
(f) lien searches as to the Administrative Agentall Credit Parties; and
(cg) such other documents and opinions to be executed or delivered by the Administrative Agent shall have received evidence, satisfactory to Credit Parties as may be reasonably requested by the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 2 contracts
Sources: Credit Agreement and Security Agreements (TerrAscend Corp.), Credit Agreement and Security Agreements (TerrAscend Corp.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Joinder shall become not be effective if, on or before April 15, 2011, all until each of the following conditions precedent have been satisfied:fulfilled to the reasonable satisfaction of each Lender.
(a) the Administrative Agent This Joinder shall have received evidencebeen duly executed and delivered by the respective parties hereto, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;each Lender.
(b) All action on the Administrative Agent part of the New Borrower and the other Loan Parties necessary for the valid execution, delivery and performance by the New Borrower and the other Loan Parties of this Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written been duly and effectively taken and evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date thereof reasonably satisfactory to each Lender shall have been provided to each Lender.
(c) The New Borrower shall each have delivered the Administrative Agent and otherwise following to each Lender, in form and substance reasonably satisfactory to the Administrative Agenteach Lender:
(i) Certified copies of resolutions A copy of the Board certificate or articles of Directors incorporation or equivalent managing body certificate of formation, as applicable, of such New Borrower, certified by the Secretary of State of the Borrower approving jurisdiction of its organization, and a certificate of good standing (to the transactions contemplated by this Agreement and extent such concept exists) from such applicable Secretary of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;State.
(ii) A certificate of an authorized officer relating to the Secretary or an Assistant Secretary organization and existence of Borrower certifying (A) such party, the names authorization of the transactions contemplated by the Loan Documents, and attesting to the true signatures of the officers each Person authorized as a signatory to any of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are Loan Documents, together with true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct accurate copies of all governmental Charter Documents.
a) Execution and regulatory authorizations and approvals required for the due execution, delivery and performance by the New Borrower of this Agreement any other applicable Loan Documents and agreements required by the documents contemplated hereby;Lenders.
(iiid) A certificate signed by either the chief financial officer, principal accounting officer or treasurer The Lenders shall have received a written legal opinion of the Borrower stating that New Borrower’s counsel addressed to the Lenders, covering such matters relating to the New Borrower, the Loan Documents and/or the transactions contemplated thereby as each Lender shall reasonably request.
(Ae) All reasonable out-of-pocket fees and Credit Party expenses incurred by the representations Lenders in connection with the preparation and warranties contained negotiation of this Joinder and related documents (including the reasonable fees and expenses of counsel to the Lenders) shall have been paid in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and full.
(Bf) no No Default or Event of Default or Unmatured Event of Default has shall have occurred and is continuing on the date of such certificate; andbe continuing.
(ivg) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form The Loan Parties shall have executed and substance reasonably acceptable delivered to the Administrative Agent; and
(c) the Administrative Agent shall have received evidenceLenders such additional documents, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers instruments and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers agreements as to the Effective Dateeach Lender may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (American Apparel, Inc)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15October 14, 20112016, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Agreement (after giving effect to the last sentence of Section 2.16.1) and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either any of the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, substantially in the form and substance reasonably acceptable to the Administrative Agentof Exhibit D; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Closing Date (including amounts then payable to the Joint Active Lead Arrangers and the AgentsAdministrative Agent). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers Issuer as to the Effective Closing Date.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders Forbearance and the obligations of the Borrower hereunder) Limited Waiver shall become effective if, on or before April 15, 2011, all the date (the “Forbearance and Limited Waiver Effective Date”) upon which each of the following conditions precedent set forth below have been satisfied:
(a) the Administrative Agent (or its counsel) shall have received evidencea counterpart of this Forbearance and Limited Waiver signed by each of the Borrower, satisfactory to the Administrative Agent, that Agent and the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedRequired Revolving Lenders;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory except with respect to the Administrative Agent Specified Defaults, the representations and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body warranties of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action contained in Article V of the Borrower with respect to this Credit Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the any other documents to be delivered hereunder; (B) that attached thereto Loan Document are true and correct copies in all material respects (or with respect to representations and warranties qualified by materiality, in all respects) on and as of the organizational documents of Forbearance and Limited Waiver Effective Date, except to the Borrowerextent that such representations and warranties specifically refer to an earlier date, in each which case in effect on such date; and (C) that attached thereto are they shall be true and correct copies as of such earlier date in all governmental material respects (or with respect to representations and regulatory authorizations and approvals required for the due executionwarranties qualified by materiality, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officerin all respects), principal accounting officer or treasurer of the Borrower stating except that (A) the representations and warranties contained in Section 4.01 are correct on Sections 5.05(a) and as (b) of the date of such certificate as though made on and as of such date Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (Bb) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andCredit Agreement, respectively;
(ivc) A favorable opinion payment in full of all reasonable and documented outstanding fees and expenses of advisors to the Administrative Agent (including ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ PC and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable & Associates LLC) invoiced at least two (2) Business Days prior to the Administrative Agentdate hereof; and
(cd) the Administrative Agent shall have received evidence, satisfactory to receipt by the Administrative Agent, that for the Borrower has paid (or will pay with the proceeds pro rata benefit of the initial Credit Extensions) all fees and, each Lender executing and delivering its signature page to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable this Forbearance and Limited Waiver to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify or its counsel on or prior to 5:00 p.m., New York time, on June 11, 2019, of a fee in the Borrower, the Lenders and the LC Issuers as to the Effective Dateamount of $368,750.
Appears in 2 contracts
Sources: Forbearance and Limited Waiver to Credit Agreement (Monitronics International Inc), Forbearance and Limited Waiver to Credit Agreement (Ascent Capital Group, Inc.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Joinder shall become not be effective if, on or before April 15, 2011, all until each of the following conditions precedent have been satisfiedfulfilled to the reasonable satisfaction of the Agent:
(a) the Administrative Agent This Joinder shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable been duly executed and delivered by the Borrower under the Existing Credit Facility respective parties hereto, and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;shall be in full force and effect.
(b) All action on the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each part of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement New Guarantor and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required Loan Parties necessary for the due valid execution, delivery and performance by the Borrower New Guarantor and the other Loan Parties of this Agreement Joinder and all other documentation, instruments, and agreements to be executed in connection herewith shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the documents contemplated hereby;Agent shall have been provided to the Agent.
(iiic) A certificate signed by either The New Guarantor shall have delivered the chief financial officer, principal accounting officer or treasurer of following to the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the BorrowerAgent, in form and substance reasonably acceptable satisfactory to the Administrative Agent:
(i) Copies of the New Guarantor’s Organization Documents and such other documents and certifications as the Agent may reasonably require to evidence that the New Guarantor is duly organized or formed, and that the New Guarantor is validly existing, in good standing in its jurisdiction of organization or formation.
(ii) Certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the New Guarantor as the Agent may require evidencing (A) the authority of the New Guarantor to enter into this Joinder and the other Loan Documents to which the New Guarantor is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Joinder and the other Loan Documents to which the New Guarantor is a party or is to become a party.
(iii) Execution and/or delivery by the New Guarantor of the following Loan Documents:
a) Blocked Account Agreement with Bank of America, N.A.
b) An Information Certificate duly completed by the New Guarantor;
c) Evidence satisfactory to the Agent that the insurance policies required for the New Guarantor by the Credit Agreement are in full force and effect, together with appropriate evidence showing notice of cancellation, lender loss payable and/or additional insured clauses or endorsements in favor of the Agent; and
d) Such other documents and agreements as the Agent may reasonably require to accomplish the purposes hereof.
(cd) Upon the Administrative request of the Agent in its sole discretion, the Agent shall have received evidencea written legal opinion White & Case LLP, satisfactory counsel to the Administrative AgentNew Guarantor, that addressed to the Borrower has paid Agent and each Lender, covering such matters relating to the New Guarantor, the Loan Documents and/or the transactions contemplated thereby as the Agent may reasonably request.
(or will pay e) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements and filings with the proceeds United States Patent and Trademark Office and the United States Copyright Office and Blocked Account Agreements, required by law or reasonably requested by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the reasonable satisfaction of the initial Agent.
(f) All reasonable fees and Credit Extensions) all fees and, to the extent billed, expenses payable Party Expenses incurred by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers Agent and the Agents). Promptly upon other Credit Parties in connection with the occurrence thereof, preparation and negotiation of this Joinder and related documents shall have been paid in full by the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateNew Guarantor.
Appears in 2 contracts
Sources: Joinder Agreement (Sequential Brands Group, Inc.), Joinder Agreement (Sequential Brands Group, Inc.)
Conditions Precedent to Effectiveness. This Agreement (including shall be effective upon the Commitments satisfaction of the Lenders and conditions precedent that the obligations of the Borrower hereunder) Purchaser shall become effective if, have received on or before April 15the Closing Date, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentPurchaser, all of the following:
(i) Certified copies a copy of resolutions this Agreement duly executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A a certificate of the Secretary or an Assistant Secretary of Borrower the Seller, dated the Closing Date, certifying (A) the names and true signatures of the incumbent officers of the Borrower Seller authorized to sign on behalf of the Seller this Agreement Agreement, the Loan Assignments and the all other documents to be delivered hereunder; executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii)), (B) that attached thereto are true the copy of the certificate of incorporation of the Seller is a complete and correct copies copy and that such certificate of the organizational documents of the Borrowerincorporation has not been amended, modified or supplemented and is in each case in effect on such date; full force and effect, (C) that attached thereto the copy of the by-laws of the Seller are true a complete and correct copies copy, and that such by-laws have not been amended, modified or supplemented and are in full force and effect, and (D) the resolutions of all governmental the board of directors of the Seller approving and regulatory authorizations and approvals required for authorizing the due execution, delivery and performance by the Borrower Seller of this Agreement Agreement, the Loan Assignments and all other documents to be executed by the documents contemplated herebySeller hereunder or in connection herewith;
(iii) A certificate signed a good standing certificate, dated as of a recent date for the Seller, issued by either the chief financial officer, principal accounting officer or treasurer Secretary of State of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as Seller’s State of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andincorporation;
(iv) A favorable opinion filed, original copies of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPproper financing statements (the “Facility Financing Statements”) describing the Sale Portfolio, counsel and naming the Seller as the “Debtor/Seller”, the Purchaser as “Secured Party/Buyer” and the Collateral Agent, for the Borrowerbenefit of the Secured Parties, as “Total Assignee”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Purchaser’s ownership interest in all Sale Portfolio;
(v) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller;
(vi) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Purchaser and its assigns), dated a date reasonably near to the Closing Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller (under its present name and any previous name) as debtor and which are filed in the State of Delaware, together with copies of such financing statements (none of which shall cover any Sale Portfolio);
(vii) all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser, each Lender Agent and the Administrative Agent; and
(c) , and the Purchaser, each Lender Agent and the Administrative Agent shall have received evidencefrom the Seller copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser, each Lender Agent and the Administrative Agent may have requested;
(viii) any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Administrative Agent, that Purchaser;
(ix) the Borrower has Seller shall have paid all fees then required to be paid by it on the Closing Date; and
(x) one or will pay more favorable Opinions of Counsel from counsel to the Seller with respect to the proceeds perfection and enforceability of the initial Credit Extensions) all fees and, to security interest hereunder and such other matters as the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DatePurchaser or any assignee thereof may reasonably request.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Golub Capital BDC, Inc.), Purchase and Sale Agreement (Fifth Street Finance Corp)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Second Amendment shall become effective if, on or before April 15, 2011, all the date (the “Second Amendment Effective Date”) when each of the following conditions precedent shall have been satisfied:
(ai) the Borrower, the Guarantor, the Administrative Agent, the Existing Administrative Agent and the Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile, pdf or other electronic transmission) the same to the Administrative Agent;
(ii) all of the representations and warranties contained in the Credit Agreement and other Loan Documents are true and correct in all material respects on the Second Amendment Effective Date after giving effect to this Second Amendment, with the same effect as though such representations and warranties had been made on and as of the Second Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such specified date);
(iii) the Borrower shall have paid an amendment fee in an amount equal to the product of (x) each Lender’s commitment amount, multiplied by (y) the rate separately agreed with such Lender;
(iv) the Borrower shall have paid any reasonable and documented out-of-pocket expenses of the Administrative Agent invoiced to the Borrower at least 2 Business Days prior to the Second Amendment Effective Date required to be paid or reimbursed pursuant to Section 10.03 of the Credit Agreement, including the reasonable and documented fees, charges and disbursements of counsel for the Administrative Agent;
(v) the Administrative Agent shall have received evidencecertified copies of the charter, by-laws and other constitutive documents of each Obligor and of resolutions of the Board of Directors of each Obligor authorizing this Agreement, together with incumbency certificates dated the date of this Agreement evidencing the identity, authority and capacity of each Person authorized to execute and deliver this Agreement and any other documents to be delivered by each such Obligor pursuant hereto, all in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Agent and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedits counsel;
(bvi) the Administrative Agent shall have received favorable written opinions (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory addressed to the Administrative Agent and otherwise in form the Lenders and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of dated the date of such certificate as though made on and as this Agreement) of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, special New York counsel for of the BorrowerObligors, in form and substance reasonably acceptable which opinion shall be substantially similar to the Administrative Agentopinion delivered on the First Amendment Effective Date; and
(cvii) the Borrower, the Guarantor, the Administrative Agent and the Existing Administrative Agent shall have received evidencesigned a counterpart of the Resignation and Appointment Agreement (whether the same or different counterparts) and shall have delivered (including by way of facsimile, satisfactory pdf or other electronic transmission) the same to the Administrative Agent, that the Borrower has paid (or will pay Agent and such Resignation and Appointment Agreement shall have become effective in accordance with its terms substantially simultaneously with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Second Amendment Effective Date.
Appears in 2 contracts
Sources: Five Year Senior Credit Agreement, Five Year Senior Credit Agreement (TE Connectivity Ltd.)
Conditions Precedent to Effectiveness. This Credit Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all the date (the “Effective Date”) on which each of the following conditions precedent have been satisfied:is satisfied (or waived in accordance with Section 10.02):
(a) the The Administrative Agent (or its counsel) shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received from each party hereto either (i) a counterpart of this Credit Agreement signed on behalf of each such party hereto or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic telecopy transmission of a signed signature page of this Credit Agreement) that each such party hereto has signed a counterpart of this Agreement and each of the following documents, each dated Credit Agreement.
(b) The Administrative Agent shall have received a date reasonably satisfactory favorable written opinion or opinions (addressed to the Administrative Agent and otherwise in form the Lenders and substance satisfactory to dated the Administrative Agent:
Effective Date) of (i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Borrower, in form and substance reasonably acceptable to the Credit Parties and (ii) A&L Goodbody, Irish counsel to the Credit Parties, and covering such matters relating to the Credit Parties, this Credit Agreement or the Financing Transactions as the Administrative AgentAgent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received a certificate (signed by a director, the company secretary or an assistant secretary) of:
(i) each of the Credit Parties, attaching and certifying as true and correct (x) its Organizational Documents, (y) the board resolutions approving the Financing Transactions and (z) a specimen of the signature of each person authorized by such resolutions to execute and deliver this Credit Agreement; and
(cii) the Borrower and Holdings, certifying that (w) the borrowing or guarantee of the Commitments, as the case may be, will not cause any borrowing or guarantee limits, as the case may be, or similar limits binding on the Borrower and Holdings, as the case may be, to be exceeded, (x) the Borrower or Holdings, as the case may be, has complied with the provisions of Section 60 of the Act in order to enable it to enter into this Credit Agreement and perform its obligations under this Credit Agreement, (y) neither the Borrower nor Holdings, as the case may be, nor any director or company secretary of the Borrower or Holdings, as the case may be, is a company or a person to whom Chapter I or Chapter II of Part VII of the 1990 Act applies and (z) the prohibition contained in Section 31 of the 1990 Act does not apply to this Credit Agreement (or the Guaranty, as the case may be).
(d) The Administrative Agent shall have received a certificate, dated as of the Effective Date and signed by a director, the President, a Vice President or a Financial Officer of the Borrower, certifying that (i) no Default as of the Effective Date has occurred and is continuing and (ii) the representations and warranties contained in Article III are true and correct in all material respects on and as of the date of the Effective Date as if made on and as of such 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).
(e) The Administrative Agent shall have received a copy, certified by Borrower, of the Press Release and the Transaction Agreement executed by each party thereto. The Administrative Agent shall promptly notify the Borrower and the Lenders of the occurrence of the Effective Date, and such notice shall be conclusive and binding on all parties hereto. Without limiting the generality of the provisions of the last paragraph of Section 8.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received evidencenotice from such Lender, satisfactory with a copy to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as prior to the proposed Effective DateDate specifying its objection thereto.
Appears in 2 contracts
Sources: Senior Unsecured Cash Bridge Credit Agreement (Medtronic Inc), Senior Unsecured Cash Bridge Credit Agreement
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all is conditioned upon satisfaction of the following conditions precedent have been satisfiedprecedent:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative The Agent, that the Borrower has paid (or will pay with the proceeds ’s receipt of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the following documentssigning Loan Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date reasonably satisfactory to the Administrative Agent before such date) and otherwise each in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and duly executed by each of all documents evidencing other necessary organizational action of Holdings, the Borrower with respect to this Agreement Borrowers, the Agent, and the documents contemplated hereby;Lenders.
(ii) A certificate the Security Documents (including, without limitation, the Security Agreement), each duly executed by the applicable Loan Parties;
(iii) reserved;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party as the Secretary or an Assistant Secretary of Borrower certifying Agent may reasonably require evidencing (A) the names and true signatures authority of the officers of the Borrower authorized each Loan Party to sign enter into this Agreement and the other documents Loan Documents to which such Loan Party is a party or is to be delivered hereunder; a party and (B) the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized 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;
(v) copies of each Loan Party’s organization or other governing documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where failure to so qualify could reasonably be expected to have a Material Adverse Effect;
(vi) an opinion of in house counsel to Holdings and of one or more special or local counsel to Holdings, the Borrowers, and the other Loan Parties, addressed to the Agent and each Lender as to such matters as the Agent may reasonably request;
(vii) a certificate signed by an Authorized Officer of Holdings and the Borrowers certifying (A) that the conditions specified in Section 4.02 have been satisfied and (B) that attached thereto are true and correct copies the incurrence of the organizational documents Term Loans does not conflict with (i) the indenture governing the Existing Second Lien Notes or (ii) the First Lien Credit Agreement, (B) that the Loan Parties, taken as a whole, are Solvent as of the Borrower, in each case in date hereof after giving effect on such date; to the transactions contemplated hereby and (C) that attached thereto are the Perfection Certificate is true and correct copies of in all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificatematerial respects; and
(ivviii) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPsuch other customary certificates, counsel for documents or consents as the BorrowerAgent reasonably may require.
(b) all actions required by law or reasonably requested by the Collateral Agent or the Agent to be undertaken, in form and substance all, documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably acceptable requested by the Collateral Agent or the Agent to be filed, registered, or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the Administrative satisfaction of the Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid Reserved.
(or will pay with the proceeds of the initial Credit Extensionsd) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date Reserved.
(including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datee) Reserved.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Sears Holdings Corp), Second Lien Credit Agreement (Sears Holdings Corp)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) [reserved].
(f) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Conditions Precedent to Effectiveness. This Agreement Amendment shall be effective upon the date (including such date, the Commitments of the Lenders and the obligations of the Borrower hereunder“First Amendment Effective Date”) shall become effective if, on or before April 15, 2011, all that each of the following conditions precedent have been is satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to the Administrative a counterpart signature page of this Amendment duly executed by (i) each Agent, that (ii) the Borrower has paid and (or will pay with iii) the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedRequired Lenders;
(b) the Administrative Agent The Required Lenders shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission copy of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory duly executed amendment to the Administrative Agent and otherwise First Lien Credit Agreement, which shall be in form and substance satisfactory to the Administrative Agent:Required Lenders;
(c) The Required Lenders shall have received a customary legal opinion of Dechert LLP, special counsel to the Borrower and the other Loan Parties, in connection with this Amendment, which shall be in form and substance satisfactory to the Required Lenders;
(d) The Required Lenders shall have received a certificate from the secretary of each Loan Party (i) Certified copies of certifying to and attaching resolutions of the Board of Directors or equivalent managing body of the Borrower approving authorizing the transactions contemplated by this Agreement the Amendment, which shall be in form and of all documents evidencing other necessary organizational action of substance satisfactory to the Borrower with respect to this Agreement and the documents contemplated hereby;
Required Lenders, (ii) A certificate certifying that the Organizational Documents of such Loan Party have not been amended, amended and restated or otherwise modified since the Secretary Closing Date (or an Assistant Secretary of Borrower certifying (A) the names attaching such amendments or other modifications), and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A attaching a certificate signed by either of good standing (to the chief financial officer, principal accounting officer extent such concept or treasurer of a similar concept exists under the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date laws of such certificate as though made on and as Loan Party’s jurisdiction of organization) of such date Loan Party (other than DBG Holdings Subsidiary Inc. (“DBG Holdings”) and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇H▇▇▇▇▇ Clothing, LLC (“H▇▇▇▇▇ LLP, counsel for Clothing”)) as of a recent date from the Borrower, in form and substance reasonably acceptable to Secretary of State (or other similar official) of the Administrative Agentjurisdiction or organization of such Loan Party; and
(ce) the Administrative Agent The Required Lenders shall have received evidence, satisfactory a certificate from the Chief Financial Officer of the Borrower certifying to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensionsmatters set forth in Section 3(d) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datehereof.
Appears in 2 contracts
Sources: Credit Agreement (Centric Brands Inc.), Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart The effectiveness of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsAmendment is expressly conditioned upon satisfaction, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to Lender, of each of the Administrative Agentfollowing conditions:
(a) receipt by Lender of:
(i) Certified the approval of this Amendment and the transactions contemplated hereby from its primary credit authority,
(ii) one or more counterparts of this Amendment, duly executed and delivered by Borrower and Lender,
(iii) one or more counterparts of the Convertible Note Subordination Agreement, duly executed and delivered by each Subordinated Creditor party thereto, Borrower and Lender,
(iv) true, correct and complete copies of all Convertible Note Documents, each of which shall be in form and substance acceptable to Lender,
(v) confirmation that all conditions precedent to the closing of the Convertible Note Purchase Agreement (including an “Aggregate Loan Facility” as defined therein in an amount of at least $66,000,000) and the issuance of the initial Convertible Notes thereunder have been satisfied, and Borrower has received and deposited into its Deposit Accounts maintained with CIBC Bank USA net proceeds therefrom in an aggregate amount of at least $31,500,000,
(vi) evidence confirming Borrower has deposited into its Deposit Accounts maintained with CIBC Bank USA cash in an aggregate amount of at least $33,000,000,
(vii) a certificate of Pulmonx, duly executed by a Responsible Officer of Pulmonx, certifying and attaching resolutions duly adopted by all of the directors of the Board of Directors or equivalent managing body Pulmonx approving execution and delivery of this Amendment and the Convertible Note Documents, the performance of its obligations thereunder and the incurrence of the Borrower approving Indebtedness under the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action Convertible Note Documents,
(viii) payment of the Borrower with respect to amendment fee described in Section 8 of this Agreement Amendment, and
(ix) such other documents and the documents contemplated herebyagreements as Lender may reasonably require;
(iib) A certificate of the Secretary in Lender’s sole but reasonable discretion, there has not been any event or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized circumstance that has had or could reasonably be expected to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agenthave a Material Adverse Effect; and
(c) the Administrative Agent Lender and its counsel shall have received evidencecompleted their due diligence review, in each case, with outcomes satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateLender.
Appears in 2 contracts
Sources: Loan and Security Agreement (Pulmonx Corp), Loan and Security Agreement (Pulmonx Corp)
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender and each LC Issuing Bank to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Iowa as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Iowa (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, satisfactory to dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(d) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the date hereof.
(e) [reserved].
(f) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, any Lender or any LC Issuers as to Issuing Bank shall have reasonably requested through the Effective DateAdministrative Agent reasonably in advance of the date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The obligation of the Lenders each Lender, each LC Issuing Bank and the obligations Swingline Lender to make the initial Extension of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (i) below and the General and Refunding Mortgage Bond described in paragraph (viii) below) for the Swingline Lender, each Lender and each LC Issuing Bank:
(i) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(ii) (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Nevada as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Nevada (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iii) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents (including, without limitation, the amendment or replacement of the existing General and Refunding Mortgage Bond).
(iiiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date.
(v) A favorable opinion of in-house counsel for the Borrower, substantially in the form of Exhibit D-1 hereto.
(vi) A favorable opinion of special New York counsel for the Borrower, substantially in the form of Exhibit D-2 hereto.
(vii) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, in the form of Exhibit E hereto.
(viii) The General and Refunding Mortgage Bond referred to in clause (a) of the definition thereof, duly issued and delivered by a duly authorized officer of the Borrower and duly authenticated by the Indenture Trustee.
(ix) (A) Certified copies of the General and Refunding Mortgage Indenture as in effect on the Closing Date; (B) an Officer’s Certificate pursuant to a supplemental indenture or board resolution meeting the requirements of Section 4.01(b) of the General and Refunding Mortgage Indenture and setting forth the terms of the General and Refunding Mortgage Bond referred to in paragraph (viii) above; (C) a “Company Order” (as defined in the General and Refunding Mortgage Indenture) requesting authentication of such General and Refunding Mortgage Bond by the Indenture Trustee; and (CD) that attached thereto all legal opinions provided in connection with the issuance of such General and Refunding Mortgage Bond, including any provided pursuant to Section 4.01(d) of the General and Refunding Mortgage Indenture.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate effectiveness as though made on and as of such date and date, and
(Bii) no Event of Default or Unmatured Event of Default No event has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; andthat constitutes a Default.
(c) The Borrower and each Lender that is an LC Issuing Bank on such date shall have entered into an LC Issuing Bank Fee Letter.
(d) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, the Global Coordinator, the Joint Lead Arrangers and the Lenders payable on the date hereof (including the accrued fees and expenses of counsel to the Administrative Agent to the extent then due and payable).
(e) The Administrative Agent shall have received evidenceall documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, satisfactory including without limitation the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders reasonably in advance of the date hereof.
(f) The Administrative Agent shall have received a copy of a letter agreement, dated as of June 27, 2014, among the Borrower, the Administrative Agent and any “Lender” (as defined in the Existing Credit Agreement) party to the Existing Credit Agreement that is not an Initial Lender hereunder, evidencing the termination of the “Commitment” (as defined in the Existing Credit Agreement) of such “Lender”.
(g) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, that the Borrower has paid (Swingline Lender, any Lender or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, any LC Issuing Bank shall have reasonably requested through the Administrative Agent shall notify reasonably in advance of the Borrower, the Lenders and the LC Issuers as to the Effective Datedate hereof.
Appears in 2 contracts
Sources: Credit Agreement (Sierra Pacific Power Co), Credit Agreement (Nevada Power Co)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Amendment shall become effective if, on or before April 15, 2011, all of the date hereof (the “Effective Date”) provided that the following conditions precedent have been satisfied:
(a1) the Parent Borrower, the Guarantors, all Continuing Lenders (constituting Required Lenders, as determined immediately prior to giving effect to this Amendment and the transactions contemplated under Article V hereof), the New Lenders and the Administrative Agent have each delivered a duly executed counterpart of this Amendment to the Administrative Agent;
(2) the Administrative Agent shall be satisfied that all conditions set forth in Subsections 6.2(a) and (b) of the Credit Agreement are satisfied and shall have received evidence, satisfactory to from the Administrative Agent, that the Parent Borrower has paid (or will pay with the proceeds a certificate of a Responsible Officer of the initial Credit Extensions) all amounts then payable by Parent Borrower confirming the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedsame;
(b3) the Administrative Agent shall have received (i) a counterpart copy of this Agreement signed on behalf the certificate or articles of incorporation or organization, including all amendments thereto, of each party hereto Loan Party, certified, if applicable, by the Secretary of State of the state of its incorporation or organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) written evidence (which may include electronic transmission a certificate of a signed signature page Responsible Officer of this Agreement) that each party hereto has signed a counterpart of this Agreement Loan Party dated the Effective Date and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names that attached thereto is a true and true signatures complete copy of the officers by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; Effective Date, (B) that attached thereto are is a true and correct copies complete copy of resolutions duly adopted by the organizational documents board of directors (or equivalent governing body) of such Loan Party authorizing the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance of the Loan Documents to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the Borrower incumbency and specimen signature of this Agreement and the documents contemplated herebyResponsible Officer executing the certificate pursuant to clause (ii) above;
(iii4) A certificate signed by either the chief financial officer, principal accounting officer or treasurer Administrative Agent shall have been paid all reasonable out of pocket costs and expenses of the Borrower stating that Administrative Agent in connection with the preparation, negotiation and execution of this Amendment (A) including the representations reasonable fees and warranties contained in Section 4.01 are correct on and as expenses of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, as counsel to the Administrative Agent); and
(5) the Administrative Agent shall have received from Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) Loan Parties, an executed legal opinion covering such matters as the Administrative Agent shall have received evidence, may reasonably request and otherwise reasonably satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Atkore International Group Inc.), Credit Agreement (Atkore International Holdings Inc.)
Conditions Precedent to Effectiveness. This Agreement (including shall be effective upon the Commitments satisfaction of the Lenders and conditions precedent that the obligations of the Borrower hereunder) Purchaser shall become effective if, have received on or before April 15the Restatement Date, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentPurchaser, all of the following:
(i) Certified copies a copy of resolutions this Agreement duly executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A a certificate of the Secretary or an Assistant Secretary of Borrower the Seller, dated the Restatement Date, certifying (A) the names and true signatures of the incumbent officers of the Borrower Seller authorized to sign on behalf of the Seller this Agreement Agreement, the First Tier Loan Assignments and the all other documents to be delivered hereunder; executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii)), (B) that the copy of the articles of incorporation of the Seller attached thereto are true is a complete and correct copies copy and that such articles of the organizational documents of the Borrowerincorporation have not been amended, modified or supplemented and are in each case in effect on such date; full force and effect, (C) that the copy of the by-laws of the Seller attached thereto are true a complete and correct copies copy, and that such by-laws have not been amended, modified or supplemented and are in full force and effect, and (D) the resolutions of all governmental the board of directors of the Seller attached thereto approving and regulatory authorizations and approvals required for authorizing the due execution, delivery and performance by the Borrower Seller of this Agreement Agreement, the First Tier Loan Assignments and all other documents to be executed by the documents contemplated herebySeller hereunder or in connection herewith;
(iii) A certificate signed a good standing certificate, dated as of a recent date for the Seller, issued by either the chief financial officer, principal accounting officer or treasurer Secretary of State of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and Seller’s State of formation or incorporation, as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andapplicable;
(iv) A favorable opinion filed, original copies of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPproper financing statements or amendments thereto (the “Facility Financing Statements”) describing the Sale Portfolio, counsel for and naming the BorrowerSeller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Purchaser’s ownership interest in all Sale Portfolio;
(v) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller;
(vi) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Administrative Purchaser and its assigns), dated a date reasonably near to the Restatement Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller (under its present name and any previous name) as debtor and which are filed in the State of Maryland, together with copies of such financing statements (none of which shall cover any Sale Portfolio);
(vii) all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser and the Agent, and the Purchaser and the Agent shall have received from the Seller copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser and the Agent may have reasonably requested;
(viii) any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Purchaser;
(ix) the Seller shall have paid all fees required to be paid by it on the Restatement Date; and
(cx) the Administrative Agent shall have received evidence, satisfactory one or more favorable Opinions of Counsel from counsel to the Administrative Agent, that Seller with respect to the Borrower has paid (or will pay with the proceeds perfection and enforceability of the initial Credit Extensions) all fees and, to security interest hereunder and such other matters as the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DatePurchaser or any assignee thereof may reasonably request.
Appears in 2 contracts
Sources: Omnibus Amendment (Ares Capital Corp), Purchase and Sale Agreement (Ares Capital Corp)
Conditions Precedent to Effectiveness. This As conditions precedent to the effectiveness of this Agreement (including the Commitments of the Lenders and the obligations of initial Advance, the Borrower hereunder) Bank shall become effective ifhave received, on or before April 15the Closing Date, 2011the items listed below in this Section, all of each in form and substance as is satisfactory to the following conditions precedent have been satisfiedBank and its counsel:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;following District documents:
(b) the Administrative Agent shall have received (i) a counterpart copy of this Agreement signed the Resolution authorizing the execution and delivery of the Related Documents to which the District is a party and the other matters contemplated hereby and thereby, certified by an Authorized Officer as being true and complete and in full force on behalf of each party hereto or the Closing Date;
(ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each the audited annual financial statements of the following documentsDistrict for the Fiscal Year ended [June 30, 2020], together with internally prepared financial statements of the District for each fiscal quarter(s) ended since the end of such Fiscal Year;
(iii) a copy of the District’s investment policy, guidelines and permitted investments in effect as of the Closing Date, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyBank;
(iiiv) A a certificate of dated the Secretary or Closing Date and executed by an Assistant Secretary of Borrower Authorized Officer certifying (A) the names names, titles, offices and true signatures of the officers persons authorized to sign, on behalf of the Borrower authorized District, the Agreement, the 2021 Sewer Notes and the other Related Documents to sign this Agreement which it is a party and the other documents to be delivered hereunderby it hereunder or thereunder; and
(v) all necessary documents required under KYC/AML documentation.
(b) executed original counterparts of this Agreement and certified copies of all of the other Related Documents;
(c) the following opinions, dated the Closing Date and addressed to the Bank or on which the Bank is otherwise expressly authored to rely:
(i) from counsel to the District, opinions in form and substance satisfactory to the Bank and its counsel;
(ii) from Bond Counsel, opinions in form and substance satisfactory to the Bank and its counsel;
(d) the following documents and other information:
(i) a certificate dated the Closing Date and executed by an Authorized Officer certifying (A) that there has been no event or circumstance since [June 30, 2020], that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 Article VI hereof and the other Related Documents are true and correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing in all material respects on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Closing Date.,
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including The effectiveness of this Amendment is subject to the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all satisfaction of the following conditions precedent precedent, unless specifically waived in writing by Agent (the date on which the conditions have been satisfied:satisfied or waived in writing by Agent, the “Effective Date”):
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each duly executed version of the following documents, in each dated a date reasonably satisfactory to the Administrative Agent and otherwise case, in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyAmendment;
(ii) A that certain (A) Fourth Amended and Restated Revolving Credit Note, dated as of the date hereof and made in favor of PNC by the Borrowers in the principal amount of $55,000,000, (B) Amended and Restated Revolving Credit Note, dated as of the date hereof made in favor of U.S. Bank National Association by the Borrowers in the principal amount of $27,500,000 and (C) Second Amended and Restated Swing Loan Note, dated as of the date hereof and made in favor of PNC by the Borrowers in the principal amount of $11,000,000;
(iii) that certain Second Amendment Fee Letter, dated as of the date hereof, by and among the Borrowers, Agent and PNC Capital Markets, LLC;
(iv) that certain Officer’s Closing Certificate, dated as of the date hereof, made by ▇▇▇▇▇▇▇ in favor of Agent;
(v) a certificate of the Secretary or an Assistant Secretary (or other equivalent officer, partner or manager) of each Borrower certifying in form and substance satisfactory to Agent dated as of the date hereof which shall certify (Ai) copies of resolutions in form and substance reasonably satisfactory to Agent, of the board of directors (or other equivalent governing body, member or partner) of such Borrower authorizing the execution, delivery and performance of this Amendment and any Other Document related thereto, (ii) the names incumbency and true signatures signature of the officers of the such Borrower authorized to sign execute this Agreement Amendment and the other documents to be delivered hereunder; such Other Documents, (Biii) that attached thereto are true and correct copies of the organizational documents Organizational Documents of the Borrower, in each case such Borrower as in effect on such date; , complete with all amendments thereto, certified, in the case of any Certificate of Formation, Certificate of Incorporation or related document, by the Secretary of State or other appropriate official of such Borrower’s jurisdiction of formation not more than thirty (30) days prior to the date hereof and (Civ) that attached thereto are true and correct copies the good standing (or equivalent status) of all governmental and regulatory authorizations and approvals required for such Borrower in its jurisdiction of organization, as evidenced by good standing certificate(s) (or the due executionequivalent thereof issued by any applicable jurisdiction) dated not more than thirty (30) days prior to the date hereof, delivery and performance issued by the Borrower Secretary of this Agreement and the documents contemplated herebyState or other appropriate official of such jurisdiction;
(iiivi) A certificate signed by either the chief financial officer, principal accounting officer or treasurer executed legal opinions of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable which shall cover such matters incident to the Administrative Agenttransactions contemplated by this Amendment and related agreements as Agent may reasonably require; and
(cvii) the Administrative all other documents and information as shall be reasonably requested by Agent or any Lender;
(b) Agent shall have received evidenceupdated lien searches on each Borrower, the results of which shall be satisfactory to the Administrative AgentRequired Lenders and shall reveal no liens other than Permitted Encumbrances;
(c) After giving effect to this Amendment (for the avoidance of doubt, including the waiver of the Specified Events of Default set forth in Section 4.01), the representations and warranties made by the Loan Parties contained herein and in the Credit Agreement, as amended hereby, and the Other Documents, shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof, as if those representations and warranties were made for the first time on such date, except for those representations and warranties that are specifically made as of another date which shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such other date;
(d) After giving effect to this Amendment (for the Borrower has paid avoidance of doubt, including the waiver of the Specified Events of Default set forth in Section 4.01), no Default or Event of Default shall exist under the Credit Agreement or any of the Other Documents, and no Default or Event of Default will result under the Credit Agreement or any Other Documents from the execution, delivery or performance of this Amendment; and
(or will pay e) Agent shall have received payment of all fees and expenses (i) due and payable under the Fee Letter and (ii) incurred by Agent and the Required Lenders in connection with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereofAgreement, the Administrative Agent shall notify the Borrower, the Lenders Other Documents and the LC Issuers as to the Effective Datethis Amendment.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan, Guaranty and Security Agreement (Dril-Quip Inc), Revolving Credit, Term Loan, Guaranty and Security Agreement (Innovex Downhole Solutions, Inc.)
Conditions Precedent to Effectiveness. This The effectiveness of this Amended and Restated Receivables Purchase Agreement (including is subject to the Commitments of condition precedent that the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to on or before the Administrative Agent, that date of such Purchase the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each (unless otherwise indicated) dated a date reasonably satisfactory to the Administrative Agent and otherwise such date, in form and substance satisfactory to the Administrative Agent:
(ia) Certified copies A Certificate duly executed by each Seller;
(b) A copy of the resolutions of the Board of Directors or equivalent managing body of each Seller approving this Agreement, the Borrower approving Certificate and the other Agreement Documents to be delivered by it hereunder and the transactions contemplated hereby, certified by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyits Secretary or Assistant Secretary;
(iic) Good standing certificates for each domestic Seller issued by the Secretaries of State of Wisconsin and Massachusetts, as appropriate;
(d) A certificate of the Secretary or an Assistant Secretary of Borrower each Seller certifying (A) the names and true signatures of the officers of the Borrower authorized on its behalf to sign this Agreement Agreement, the Certificate and the other documents Agreement Documents to be delivered hereunder; by it hereunder (B) that attached thereto are true on which certificate the Agent and correct copies of each Purchaser may conclusively rely until such time as the organizational documents of Agent shall receive from such Seller a revised certificate meeting the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower requirements of this Agreement and the documents contemplated herebysubsection (d));
(iiie) The Articles of Incorporation of each domestic Seller, duly certified by the Secretary of State of Wisconsin or Massachusetts, as appropriate, as of a recent date acceptable to Agent, together with a copy of the By-laws of each Seller, duly certified by the Secretary or an Assistant Secretary of such Seller;
(f) Acknowledgment copies of amendments to the Financing Statements filed pursuant to the Original Purchase Agreement, which amendments shall have been filed on or prior to the date hereof;
(g) A certificate signed search report provided in writing to the Agent by either CT Corporation, listing all effective financing statements that name any domestic Seller as debtor and that are filed in the chief financial officerjurisdictions in which filings were made pursuant to subsection (f) above, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date together with copies of such certificate as though made on and as financing statements (none of such date and (B) no Event of Default which shall cover any Receivables or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andContracts);
(ivh) A favorable opinion of ▇▇▇▇Quar▇▇▇ & ▇rad▇, ▇▇▇▇▇ LLP, counsel for the Borrowerunsel to Sellers, in substantially the form and substance reasonably acceptable to of Exhibit 5.01(h);
(i) Evidence of the Administrative payment of any applicable Agent's fee; and
(cj) the Administrative Agent shall have received evidenceDuly executed copy of Part I of a Periodic Report together with a completed Schedule I thereto calculated as of July 31, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date1995.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The obligation of the Lenders each Lender, each LC Issuing Bank and the obligations Swingline Lender to make the initial Extension of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (i) below) for the Swingline Lender, each Lender and each LC Issuing Bank:
(i) Promissory notes payable to the order of each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(ii) (A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iii) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; .
(v) A favorable opinion of in-house counsel for the Borrower, substantially in the form of Exhibit D-1 hereto.
(vi) A favorable opinion of special New York counsel for the Borrower, substantially in the form of Exhibit D-2 hereto.
(vii) A favorable opinion of ▇▇▇▇ & Spalding LLP, counsel for the Administrative Agent, in the form of Exhibit E hereto.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated such date, stating that:
(Ci) that attached thereto The representations and warranties of the Borrower contained in this Agreement are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate effectiveness as though made on and as of such date and date, and
(Bii) no Event of Default or Unmatured Event of Default No event has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; andthat constitutes a Default.
(c) The Borrower and each Lender that is an LC Issuing Bank on such date shall have entered into an LC Issuing Bank Fee Letter.
(d) The Borrower shall have paid all accrued fees and expenses of the Administrative Agent, the Global Coordinator, the Joint Lead Arrangers and the Lenders payable on the date hereof (including the accrued fees and expenses of counsel to the Administrative Agent to the extent then due and payable).
(e) The Administrative Agent shall have received evidenceall documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, satisfactory including without limitation the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders reasonably in advance of the date hereof.
(f) All amounts outstanding under the Existing Credit Agreement, whether for principal, interest, fees or otherwise, shall have been paid in full, all commitments to lend thereunder shall have been terminated, and the Existing Credit Agreement shall have been terminated.
(g) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, that the Borrower has paid (Swingline Lender, any Lender or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, any LC Issuing Bank shall have reasonably requested through the Administrative Agent shall notify reasonably in advance of the Borrower, the Lenders and the LC Issuers as to the Effective Datedate hereof.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including the Commitments Amendment shall be effective as of the Lenders and Second Amendment Effective Date upon the obligations satisfaction (or waiver in writing) of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all each of the following conditions precedent have been satisfiedprecedent:
(a) the The Administrative Agent shall have received evidencefully executed counterparts of this Amendment and such other documents, satisfactory to certificates, instruments and information executed and/or delivered by the Loan Parties as the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;Agent may reasonably request.
(b) the The Administrative Agent shall have received (i) a counterpart fee in the amount of this Agreement signed on behalf $300,000, for the account of each party hereto or Lender on a pro rata basis in accordance with their respective Revolving Commitments, which fee shall be due and payable in full in cash on the Second Amendment Effective Date and (ii) written evidence all costs and expenses (which may include electronic transmission including the reasonable fees and expenses of a signed signature page of this Agreementlegal counsel) that each party hereto has signed a counterpart of this Agreement and each of to the following documents, each dated a date reasonably satisfactory extent the Loan Parties are obligated to reimburse the Administrative Agent for such expenses in accordance with the Credit Agreement and otherwise the other Loan Documents. The Administrative Agent is hereby authorized to charge all such fees and expenses to the Borrowers and Borrowers shall be deemed to have made a request for a Revolving Loan in the amount of such fees and expenses on the Second Amendment Effective Date.
(c) The Administrative Agent shall have received a Borrowing Base Certificate, dated as of the Second Amendment Effective Date and signed by a Financial Officer of the Borrower Agent, prepared as of such date as the Administrative Agent may elect.
(d) The Administrative Agent shall have received evidence satisfactory to it that (i) the Second Lien Satisfaction Date shall occur substantially contemporaneously with the effectiveness of this Amendment including, without limitation, a letter, in form and substance satisfactory to the Administrative Agent:, from the Second Lien Agent which shall include, among other things, the amount necessary to repay in full all of the obligations of the Company and its Subsidiaries owing with respect to the Second Lien Credit Documents and a release of all of the Liens existing in favor of any such lender in the assets of the Company and its Subsidiaries, together with termination statements and other documentation evidencing the termination by such lenders of such Liens and (ii) the Intercreditor Agreement shall be terminated substantially contemporaneously with the effectiveness of this Amendment.
(ie) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving All corporate and organizational proceedings taken in connection with the transactions contemplated by this Agreement Amendment and of all documents evidencing documents, instruments and other necessary organizational action of the Borrower with respect legal matters incident thereto shall be reasonably satisfactory to this Agreement Lender and the documents contemplated hereby;its legal counsel.
(iif) A certificate Each of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained set forth in Section 4.01 are 6 of this Amendment shall be true and correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datematerial respects.
Appears in 1 contract
Sources: Credit Agreement (Arhaus, Inc.)
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement is subject to the satisfaction (including the Commitments of the Lenders and the obligations of the Borrower hereunderor waiver in accordance with Section 11.5 hereof) shall become effective if, on or before April 15, 2011, all of the following conditions precedent (it being understood that by their respective execution and delivery of this Agreement, the Collateral Agent and Lenders hereby confirm that the conditions to effectiveness of this Agreement described in this Section 3.1 have been satisfiedsatisfied or waived in accordance with Section 11.5 hereof) as of the Effective Date:
(a) the Administrative Agent shall have received evidenceCollateral Agent’s and each Lender’s receipt of copies of the Loan Agreement, the Disclosure Letter to the Loan Agreement, the Perfection Certificate and the Payment/Advance Form, in each case dated as of the Effective Date, executed and delivered by each applicable Credit Party and in form and substance reasonably satisfactory to the Administrative Collateral Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated);
(b) the Administrative Agent shall have received Collateral Agent’s receipt of (i) a counterpart true, correct and complete copies of this Agreement signed on behalf the Operating Documents of each party hereto or of the Credit Parties, and (ii) written evidence a Secretary’s Certificate for each Credit Party, dated the Effective Date and signed by such Credit Party’s Secretary (which may include electronic transmission of a signed signature page of this Agreementor similar officer), certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate(s) that each party hereto has signed a counterpart of this Agreement to be in form and each of the following documents, each dated a date substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Collateral Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby);
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (Ac) the names Collateral Agent’s receipt of true, correct and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct complete copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Acquisition Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing it exists on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the BorrowerEffective Date, in form and substance reasonably acceptable satisfactory to the Administrative Collateral Agent and Lenders;
(d) the Collateral Agent’s receipt of a good standing certificate for each Credit Party (where applicable), certified by the Secretary of State (or the equivalent thereof) of the jurisdiction of incorporation or formation of such Credit Party as of a date no earlier than thirty (30) days prior to the Effective Date;
(e) the Collateral Agent’s receipt of a Secretary’s Certificate with completed Borrowing Resolutions with respect to the Loan Documents and the Term Loans for each Credit Party, dated the Effective Date and signed by such Credit Party’s Secretary (or similar officer) (such Secretary’s Certificates to be in form and substance reasonably satisfactory to the Collateral Agent);
(f) each Credit Party shall have obtained any and all Governmental Approvals and consents of other Persons that are necessary in connection with the transactions contemplated by the Loan Documents, each of which (if any) shall be in full force and effect (and in form and substance reasonably satisfactory to the Collateral Agent);
(g) subject to Section 5.14, the Collateral Agent’s receipt of (i) evidence that any products liability and general liability insurance policies maintained in the United States regarding any Collateral are in full force and effect and (ii) appropriate evidence showing the Collateral Agent, in such capacity for the benefit of Lenders and the other Secured Parties, having been named as additional insured or loss payee, as applicable (such evidence to be in form and substance reasonably satisfactory to the Collateral Agent);
(h) the Collateral Agent’s receipt of all documentation and other information required by bank regulatory authorities under applicable “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”), in form and substance reasonably satisfactory to the Collateral Agent; and
(ci) the Administrative Agent shall have received evidenceCollateral Agent’s receipt of an Officer’s Certificate, dated the Effective Date and signed by a Responsible Officer of Borrower, confirming there is no Adverse Proceeding 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 Officer’s Certificate to be in form and substance reasonably satisfactory to the Administrative Collateral Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart The effectiveness of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory is subject to the Administrative Agent and otherwise condition precedent that Bank shall have received, in form and substance satisfactory to the Administrative AgentBank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(ia) Certified copies of resolutions of Borrower shall have delivered duly executed original signatures to the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect Loan Documents to this Agreement and the documents contemplated herebywhich it is a party;
(iib) A Borrower and each Guarantor shall have delivered its Operating Documents and a good standing certificate of Borrower certified by the Secretary of State of its state of incorporation or an Assistant Secretary formation, as of Borrower certifying a date no earlier than thirty (A30) days prior to the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated herebyEffective Date;
(iiic) A certificate signed by either Borrower shall have delivered duly executed original signatures to the chief financial officercompleted Borrowing Resolutions for Borrower and each Guarantor shall have delivered duly executed original signatures for its completed guaranteeing resolutions;
(d) Bank shall have received certified copies, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and dated as of a recent date, of financing statement searches, as Bank shall request, accompanied by written evidence (including any UCC termination statements) that the date Liens indicated in any such financing statements either constitute Permitted Liens or have been terminated or released;
(e) Borrower shall have delivered the Perfection Certificates executed by Borrower and each Guarantor;
(f) Borrower shall have delivered evidence satisfactory to Bank that the insurance policies required by Section 6.7 hereof are in full force and effect, together with appropriate evidence showing loss payable and/or additional insured clauses or endorsements in favor of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificateBank; and
(ivg) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent Borrower shall have received evidence, satisfactory to paid the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensionsfees and Bank Expenses then due as specified in Section 2.9(d) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datehereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Concurrent Computer Corp/De)
Conditions Precedent to Effectiveness. This Sixth Amendment Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective ifas of the date (such date, on or before April 15, 2011, all the “Effective Date”) each of the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidencecounterparts of this Sixth Amendment Agreement, satisfactory to the Administrative Agentduly executed and delivered, that the Borrower has paid (or will pay with the proceeds from all of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;parties hereto.
(b) The Borrower shall have paid (i) the fees as agreed between the Administrative Agent and the Borrower and (ii) all reasonable and documented fees and out-of-pocket costs and expenses of the Agents, the Lenders, respective legal counsel and each other Person payable under and in accordance with the Engagement Letter and as otherwise agreed by the parties hereto, in connection with the preparation, execution and delivery of this Sixth Amendment.
(c) The Agents shall have received a certificate of an Authorized Officer of the Borrower:
(i) a counterpart to the effect that, as of the date hereof (A) subject to any conditions that are required to be satisfactory or acceptable to any Agent, all conditions set forth in this Agreement signed on behalf Section 3 have been fulfilled; (B) all representations and warranties of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of the Borrower set forth in this Agreement) that each party hereto has signed a counterpart of this Sixth Amendment, the Credit Agreement and each of the following documents, other Loan Documents are true and correct in all material respects; and (C) no Default has occurred and is continuing;
(ii) certifying as to and attaching (A) its Constituent Documents; (B) the incumbency and specimen signature of each dated of its Authorized Officers authorized to execute this Sixth Amendment; and (C) a date good standing certificate from its state or jurisdiction of incorporation or organization and any other state or jurisdiction in which it is qualified to do business in which the failure to be so qualified would reasonably satisfactory be expected to have a Material Adverse Effect; and
(iii) certifying that the Borrower does not have outstanding debt prior to the Administrative Agent date hereof other than under the Loan Documents, and otherwise in form is not at such time party to any interest rate hedging agreements or currency hedging agreements.
(d) The Agents shall have received a certificate of an Authorized Officer of each of the Services Provider, the Retention Provider and substance satisfactory to the Administrative AgentSeller:
(i) Certified copies of resolutions to the effect that, as of the Board of Directors or equivalent managing body date hereof, all representations and warranties of the Borrower approving Services Provider, the transactions contemplated by this Agreement Retention Provider and of all documents evidencing other necessary organizational action the Seller, respectively, set forth in each of the Borrower with respect to this Agreement Loan Documents are true and the documents contemplated herebycorrect in all material respects;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying as to and attaching (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunderits Constituent Documents; (B) that attached thereto are true its resolutions or other action of its board of directors, designated manager or managing member, as applicable, approving the Retention Letter and correct copies the transactions contemplated thereby; (C) the incumbency and specimen signature of each of its Authorized Officers authorized to execute the organizational documents of the Borrower, in each case in effect on such dateRetention Letter; and (CD) that attached thereto are true a good standing certificate from its state or jurisdiction of incorporation or organization and correct copies of all governmental and regulatory authorizations and approvals required for any other state or jurisdiction in which it is qualified to do business in which the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance failure to be so qualified would reasonably acceptable be expected to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.a Material Adverse Effect..
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement The initial Purchase Date hereunder is subject to the conditions precedent that the Collateral Agent, the Administrative Agent and each Purchaser Agent shall have received (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective ifunless otherwise waived), on or before April 15, 2011, all each of the following conditions precedent have been satisfiedin form and substance reasonably satisfactory to the Collateral Agent, the Administrative Agent and each Purchaser Agent:
(a) a copy of the Administrative Agent shall have received evidenceresolutions or unanimous written consents, satisfactory to as applicable, of the Administrative Agent, that the Borrower has paid board of directors or managers or member (or will pay with any authorized sub-committee), as the proceeds case may be, of each of the initial Credit Extensions) all amounts then payable ADT Entities required to authorize the execution, delivery, and performance by the Borrower under the Existing Credit Facility and that all commitments such ADT Entity of each Transaction Document to make extensions of credit to the Borrower thereunder have been (be delivered by it hereunder, certified by its secretary or concurrently with the initial Advances will be) terminatedany other authorized person;
(b) good standing certificates (or the Administrative Agent shall have received (iequivalent) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and for each of the following documents, each dated a date reasonably satisfactory to ADT Entities issued by the Administrative Agent and otherwise in form and substance satisfactory to Secretary of State (or the Administrative Agent:
(iequivalent) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyjurisdiction in which each such entity is organized;
(iic) A a certificate of the Secretary secretary or an Assistant Secretary assistant secretary of Borrower each of the ADT Entities certifying (A) the names and true signatures of the officers of the Borrower authorized on its behalf to sign this Agreement and the other documents Transaction Documents to be delivered hereunder; by it (Bon which certificate the Collateral Agent, the Administrative Agent, each Purchaser and each Purchaser Agent may conclusively rely until such time as such party shall have received from any such ADT Entity, a revised certificate meeting the requirements of this clause (c));
(d) that attached thereto are true and correct copies of the organizational documents Constituent Documents of each of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance ADT Entities duly certified by the Borrower secretary or an assistant secretary of this Agreement each such ADT Entity, and in in the documents contemplated herebycase of any certificates or articles of incorporation, formation or organization, certified by the Secretary of State (or the equivalent) of the jurisdiction in which each such entity is organized;
(iiie) A certificate signed a search report by either a nationally recognized search firm provided in writing to the chief financial officerCollateral Agent and the Administrative Agent by the Servicer listing all financing statements, principal accounting officer state and federal tax, or treasurer ERISA liens and judgments that name the Seller or ADT, as debtor and that are filed in the jurisdictions in which filings were made pursuant to clause (f) and any other jurisdictions that the Collateral Agent or the Administrative Agent shall reasonably request together with copies of such financing statements;
(f) copies of proper financing statements (form UCC-3) (including amendment and termination statements) and release documentation each in form and substance reasonably satisfactory to the Collateral Agent and the Administrative Agent with respect to any financing statement included in the search report described in clause (e) above, to the extent that any such financing statement set forth therein covers any Pool Receivables or Related Assets, other than financing statements filed pursuant to this Agreement; SK 28677 0004 8417431 v39
(g) proper financing statements naming the Seller as debtor, and the Collateral Agent as secured party, to be filed in all applicable jurisdictions in respect of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andCollateral;
(ivh) A favorable opinion opinions of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP (including with respect to creation and perfection of security interests under the applicable UCC) counsel to the ADT Entities; non-consolidation, counsel for and true sale matters; and other customary opinions required by the Borrower, in form Collateral Agent and substance reasonably acceptable to the Administrative Agent;
(i) completion of satisfactory due diligence in respect of the Receivable Pool by Purchasers, Purchaser Agents, the Collateral Agent, and the Administrative Agent;
(j) duly executed copies of each of the Fee Letters;
(k) duly executed copies of the Transaction Documents, including a Payment Direction in respect of each Lock-box Account, each Collection Account and the Omnibus Account which shall each be in full force and effect, and completion of the form of each Exhibit to this Agreement not attached hereto as of the Closing Date together with an amendment hereto attaching such Exhibits;
(l) payment by or on behalf of the Seller of each Purchaser’s, each Purchaser Agent’s, the Collateral Agent’s, and the Administrative Agent’s reasonable and documented out-of-pocket costs and expenses, including all reasonable and documented invoiced legal fees of counsel to such parties and all audit fees of Protiviti Inc. and all Fees required to be paid on the Closing Date under any Fee Letter;
(m) a pro-forma Information Package, which shall evidence compliance with the terms of this Agreement, after giving credit to the initial transfer of an interest in Receivables under this Agreement;
(n) entry into a mutually satisfactory agreement, together with an amendment to this Agreement to reflect such agreement, in respect of applicable confidentiality and information protection requirements in respect of Non-Public Borrower Data, including reasonable and adequate safeguards for the protection of such Non-Public Borrower Data; and
(co) such other agreements, instruments, certificates, opinions, and other documents as the Collateral Agent or the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid may reasonably request reasonably in advance of (or will pay with the proceeds of and in any event at least five (5) Business Days prior to) the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Purchase Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become be effective if, on or before April 15, 2011, all upon satisfaction of the following conditions precedent have been satisfiedprecedent:
(a) receipt by the Administrative Agent shall have received evidenceof counterparts of (i) this Agreement duly executed by the Borrower, satisfactory to the Guarantors, the Lenders and the Administrative Agent, that and (ii) the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable Fourth Amendment Fee Letter duly executed by the Borrower under and the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedAdministrative Agent;
(b) receipt by the Administrative Agent shall have received of satisfactory evidence that (i) a counterpart the repayment of this the Loans to be made on the Fourth Amendment Effective Date pursuant to Section 2.05 of the Credit Agreement signed on behalf of each party hereto or shall have been made, together with all accrued and unpaid interest thereon, and (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each the exit fee required by Section 2.07 of the following documentsCredit Agreement in connection with such repayment to be made on the Fourth Amendment Effective Date pursuant to Section 2.05 of the Credit Agreement shall have been paid to the Lenders, each dated a date reasonably satisfactory for their respective ratable accounts;
(c) receipt by the Administrative Agent and the Lenders of any and all other fees required to be paid on or prior to the Fourth Amendment Effective Date (including, for the avoidance of doubt, the fee set forth in the Fourth Amendment Fee Letter); and
(d) receipt by the Administrative Agent of all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent and otherwise in form all reasonable and substance satisfactory to documented out-of-pocket due diligence expenses of the Administrative Agent:
(i) Certified copies of resolutions of Agent and the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower Lenders, in each case, incurred in connection with respect to this Agreement and the documents transactions contemplated hereby;
hereby and for which invoices have been issued (ii) A certificate provided, that, the issuance of the Secretary or an Assistant Secretary such invoices shall not thereafter preclude a final settling of Borrower certifying (A) the names and true signatures of the officers of accounts between the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15October 17, 20112014, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Agreement (after giving effect to the last sentence of Section 2.16.1) and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either any of the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sidley Austin LLP, counsel for the Borrower, substantially in the form and substance reasonably acceptable to the Administrative Agentof Exhibit D; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Closing Date (including amounts then payable to the Joint Active Lead Arrangers and the AgentsAdministrative Agent). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers Issuer as to the Effective Closing Date.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15November 30, 20112006, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Facilities and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇B▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & I▇▇▇▇▇▇▇▇, LLP, counsel for the Borrower, substantially in the form and substance reasonably acceptable to the Administrative Agentof Exhibit D; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Co-Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Exelon Corp)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15November 30, 20112006, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Facilities and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Borrower, substantially in the form and substance reasonably acceptable to the Administrative Agent; andof Exhibit D;
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Co-Lead Arrangers and the Agents); and
(d) the “Effective Date” (as defined in the $1,000,000,000 Credit Agreement of even date herewith among Exelon, various financial institutions and JPMorgan Chase Bank, N.A., as administrative agent) shall have occurred. Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Effectiveness. This Agreement Amendment shall be effective on the date (including the Commitments of “Effective Date”) upon which the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all Administrative Agent receives each of the following conditions precedent have been satisfieditems:
(a) counterparts of this Amendment executed by the Administrative Agent shall have received evidenceCompany, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedRequired Lenders;
(b) the Administrative Agent shall have received Guarantors’ Consent and Agreement executed by each Guarantor;
(ic) a counterpart legal opinions of this Agreement signed on behalf ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President and General Counsel of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement Vail Resorts, Inc., and each of the following documents▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:;
(d) an Officers’ Certificate for the Restricted Companies (i) Certified copies of attaching resolutions of the Board of Directors or equivalent managing body of the Borrower approving authorizing the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
, (ii) A certificate certifying that no changes have been made to the Restricted Companies’ respective articles of the Secretary incorporation or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrowerorganization, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due executionbylaws, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of operating agreements since the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory documents were previously provided to the Administrative Agent, that as applicable, (iii) listing the Borrower has paid (or will pay with the proceeds names and titles of the initial Credit ExtensionsResponsible Officers, and (iv) all fees providing specimen signatures for such Responsible Officers; and, to the extent billed, expenses payable
(e) a certificate signed by the Borrower hereunder on a Responsible Officer certifying that as of the Effective Date (including amounts then payable i) all of the representations and warranties of the Companies in the Loan Papers are true and correct in all material respects (unless they specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, or are based on facts which have changed by transactions contemplated or permitted by the Credit Agreement), (ii) no Default or Potential Default exists under the Credit Agreement or would result from the execution and delivery of this Amendment, (iii) there has been no event or circumstance since July 31, 2007 that has had or could be reasonably expected to result in, either individually or in the aggregate, a Material Adverse Event, and (iv) except as set forth on Schedule 8.7 of the Credit Agreement or as disclosed in VRI’s Annual Report on Form 10-K for the year ended July 31, 2007, there is no action, suit, investigation, or proceeding pending or, to the Joint Active Lead Arrangers and knowledge of the Agents). Promptly upon the occurrence thereofCompany, the Administrative Agent shall notify the Borrowerthreatened, the Lenders and the LC Issuers as in any court or before any arbitrator or Governmental Authority that is reasonably likely to the Effective Datebe determined adversely to any Company and, if so adversely determined, would result in a Material Adverse Event.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The obligations of the Lenders to make Advances hereunder shall not become effective unless on and the obligations as of the Borrower hereunderdate hereof (the “Closing Date”) shall become effective if, on or before April 15, 2011, all each of the following conditions precedent have been is satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before the Administrative Agent, that Closing Date the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date reasonably satisfactory to the Administrative Agent and otherwise Closing Date, in form and substance satisfactory to the Administrative AgentAgent and in sufficient copies for each Bank:
(i) Certified copies Counterparts of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated this Agreement, duly executed by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement each Borrower, each Bank and the documents contemplated hereby;Administrative Agent.
(ii) A certificate of the Secretary or an Assistant Secretary (or analogous officer or representative) of each Borrower certifying certifying:
(A) the names and true signatures of the officers of the such Borrower authorized to sign this Agreement and the other documents Loan Documents to be executed and delivered hereunder; by such Borrower;
(B) that attached thereto are true and correct copies of: (1) the articles of the organizational documents incorporation and by-laws of the such Borrower, in each case together with all amendments thereto, as in effect on such date; (2) the resolutions of such Borrower’s board of directors approving the execution, delivery and performance by such Borrower of the Loan Documents to be executed and delivered by such Borrower; (3) all documents evidencing other necessary corporate or other similar action, if any, with respect to the execution, delivery and performance by such Borrower of the Loan Documents to be executed and delivered by such Borrower; and (C4) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals Governmental Approvals referred to in clause (i) of the definition of “Governmental Approval” required for to be obtained by such Borrower in connection with the due execution, delivery and performance by the such Borrower of this Agreement the Loan Documents to be executed and delivered by such Borrower; and
(C) that the documents contemplated hereby;resolutions referred to in the foregoing clause (B)(2) have not been modified, revoked or rescinded and are in full force and effect on such date.
(iii) A certificate signed by either the chief financial officerTreasurer or Assistant Treasurer of each Borrower, principal accounting officer or treasurer of the Borrower stating that certifying as to:
(A) the representations Borrowing Limit of such Borrower as in effect on the Closing Date;
(B) the delivery to each of the Banks, prior to the Closing Date, of true, correct and warranties contained complete copies (other than exhibits thereto) of all of the Disclosure Documents; and
(C) the absence of any material adverse change in Section 4.01 are correct the business, condition (financial or otherwise), operations, properties or prospects of such Borrower since December 31, 2009, except as disclosed in the Disclosure Documents. correct, in all material respects, on and as of the date of such certificate as though Closing Date before and after giving effect to any Advances to be made on and as of such date and the application of the proceeds thereof, and (Bii) no event has occurred and is continuing with respect to such Borrower which constitutes an Event of Default or Unmatured Event of Default has occurred and is continuing on the date in respect of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to or would result from such initial Advances or the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with application of the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Effectiveness. This Agreement (including The initial Purchase Date hereunder is subject to the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) that the Collateral Agent, the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative each Purchaser Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and unless otherwise waived), each of the following documents, each dated a date in form and substance reasonably satisfactory to the Collateral Agent, the Administrative Agent and otherwise in form and substance satisfactory to the Administrative each Purchaser Agent:
: (ia) Certified copies of resolutions a copy of the Board of Directors resolutions or equivalent managing body unanimous written consents, as applicable, of the Borrower approving board of directors or managers or member (or any authorized sub-committee), as the transactions contemplated by this Agreement and case may be, of all documents evidencing other necessary organizational action each of the Borrower with respect ADT Entities required to this Agreement authorize the execution, delivery, and performance by such ADT Entity of each Transaction Document to be delivered by it hereunder, certified by its secretary or any other authorized person; (b) good standing certificates (or the documents contemplated hereby;
equivalent) for each of the ADT Entities issued by the Secretary of State (iior the equivalent) A of the jurisdiction in which each such entity is organized; (c) a certificate of the Secretary secretary or an Assistant Secretary assistant secretary of Borrower each of the ADT Entities certifying (A) the names and true signatures of the officers of the Borrower authorized on its behalf to sign this Agreement and the other documents Transaction Documents to be delivered hereunderby it (on which certificate the Collateral Agent, the Administrative Agent, each Purchaser and each Purchaser Agent may conclusively 28 rely until such time as such party shall have received from any such ADT Entity, a revised certificate meeting the requirements of this clause (c)); (Bd) that attached thereto are true and correct copies of the organizational documents Constituent Documents of each of the BorrowerADT Entities duly certified by the secretary or an assistant secretary of each such ADT Entity, and in in the case of any certificates or articles of incorporation, formation or organization, certified by the Secretary of State (or the equivalent) of the jurisdiction in which each case such entity is organized; (e) a search report by a nationally recognized search firm provided in effect on such date; writing to the Collateral Agent and the Administrative Agent by the Servicer listing all financing statements, state and federal tax, or ERISA liens and judgments that name the Seller or ADT, as debtor and that are filed in the jurisdictions in which filings were made pursuant to clause (Cf) and any other jurisdictions that attached thereto are true and correct the Collateral Agent or the Administrative Agent shall reasonably request together with copies of all governmental such financing statements; (f) copies of proper financing statements (form UCC-3) (including amendment and regulatory authorizations termination statements) and approvals required for release documentation each in form and substance reasonably satisfactory to the due execution, delivery and performance by the Borrower of this Agreement Collateral Agent and the documents contemplated hereby;
Administrative Agent with respect to any financing statement included in the search report described in clause (iiie) A certificate signed by either above, to the chief financial officerextent that any such financing statement set forth therein covers any Pool Receivables or Related Assets, principal accounting officer or treasurer other than financing statements filed pursuant to this Agreement; (g) proper financing statements naming the Seller as debtor, and the Collateral Agent as secured party, to be filed in all applicable jurisdictions in respect of the Borrower stating that Collateral; (Ah) the representations and warranties contained in Section 4.01 are correct on and as favorable opinions of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP (including with respect to creation and perfection of security interests under the applicable UCC) counsel to the ADT Entities; non-consolidation, counsel for and true sale matters; and other customary opinions required by the Borrower, in form Collateral Agent and substance reasonably acceptable to the Administrative Agent; and
(ci) completion of satisfactory due diligence in respect of the Administrative Agent shall have received evidenceReceivable Pool by Purchasers, satisfactory to Purchaser Agents, the Collateral Agent, and the Administrative Agent, that the Borrower has paid ; (or will pay with the proceeds j) duly executed copies of each of the initial Credit ExtensionsFee Letters; (k) all fees andduly executed copies of the Transaction Documents, to the extent billedincluding a Payment Direction in respect of each Lock-box Account, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers each Collection Account and the Agents). Promptly upon Omnibus Account (as each such term was defined herein on such Initial Purchase Date) which shall each be in full force and effect, and completion of the occurrence thereofform of each Exhibit to this Agreement not attached hereto as of the Closing Date together with an amendment hereto attaching such Exhibits; (l) payment by or on behalf of the Seller of each Purchaser’s, each Purchaser Agent’s, the Administrative Agent shall notify the BorrowerCollateral Agent’s, the Lenders and the LC Issuers as to the Effective Date.Administrative Agent’s reasonable and documented out-of-pocket costs and expenses, including all reasonable and documented 29 SK 28677 0004 8494650 v1726
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The obligations of the Lenders and the obligations of the Borrower hereunder) to make Advances hereunder shall not become effective if, until the date (the "Closing Date") on or before April 15, 2011, all which each of the following conditions precedent have been is satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before the Administrative Agent, that Closing Date the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date reasonably satisfactory to the Administrative Agent and otherwise Closing Date, in form and substance satisfactory to the Administrative AgentAgent and in sufficient copies for each Lender:
(i) Certified copies Counterparts of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated this Agreement, duly executed by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;each Borrower.
(ii) Counterparts of the Mortgages, duly executed by the Collateral Agent and each Borrower party thereto.
(iii) Counterparts of the Collateral Agency Agreement, duly executed by the Collateral Agent, the Borrowers and each of the Lenders.
(iv) A certificate of the Secretary or an Assistant Secretary (or analogous officer or representative) of each Borrower certifying certifying:
(A) the names and true signatures of the officers of the such Borrower authorized to sign this Agreement and the other documents Loan Documents to be executed and delivered hereunder; by such Borrower;
(B) that attached thereto are true and correct copies of: (1) the Articles of the organizational documents Incorporation and By-laws of the such Borrower, in each case together with all amendments thereto, as in effect on such date; (2) the resolutions of such Borrower's Board of Directors approving the execution, delivery and performance by such Borrower of the Loan Documents to be executed and delivered by such Borrower; (3) all documents evidencing other necessary corporate or other similar action, if any, with respect to the execution, delivery and performance by such Borrower of the Loan Documents to be executed and delivered by such Borrower; and (C4) that attached thereto are true and correct copies of all governmental Governmental Approvals referred to in clauses (i) and regulatory authorizations and approvals (ii) of the definition of "Governmental Approval" required for to be obtained by such Borrower in connection with the due execution, delivery and performance by the such Borrower of this Agreement the Loan Documents to be executed and delivered by such Borrower (including the documents contemplated hereby;required orders of the Securities and Exchange Commission and Connecticut Department of Public Utility Control); and
(iiiC) that the resolutions referred to in the foregoing clause (B)(2) have not been modified, revoked or rescinded and are in full force and effect on such date.
(v) A certificate signed by either the chief financial officerTreasurer or Assistant Treasurer of each Borrower, principal accounting officer or treasurer certifying as to:
(A) the SEC Borrowing Limit of such Borrower as in effect on the Closing Date;
(B) the delivery to each of the Lenders, prior to the Closing Date, of true, correct and complete copies (other than exhibits thereto) of all of the Disclosure Documents; and
(C) the absence of any material adverse change in the financial condition, operations, properties or prospects of such Borrower since June 30, 2000, except as disclosed in the Disclosure Documents.
(vi) A certificate of a duly authorized officer of each Borrower stating that (Ai) the representations and warranties of such Borrower contained in Section 4.01 6.01 are correct correct, in all material respects, on and as of the date of such certificate as though Closing Date before and after giving effect to any Advances to be made on and as of such date and the application of the proceeds thereof, and (Bii) no event has occurred and is continuing with respect to such Borrower which constitutes an Event of Default or Unmatured Event of Default has occurred and is continuing on the date in respect of such certificate; andBorrower, or would result from such initial Advances or the application of the proceeds thereof.
(ivvii) A favorable opinion Such financial, business and other information regarding each Borrower and its Subsidiaries, as any Lender shall have reasonably requested.
(viii) Favorable opinions of:
(A) Day, ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Borrowers, in substantially the form of Exhibit 5.01A hereto and as to such other matters as any Lender may reasonably request;
(B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ LLP▇▇▇, counsel for the BorrowerAssistant General Counsel of NUSCO, in substantially the form of Exhibit 5.01B hereto; and substance as to such other matters as any Lender may reasonably acceptable request; and
(C) King & Spalding, special New York counsel to the Administrative Agent; and, in substantially the form of Exhibit 5.01C hereto and as to such other matters as any Lender may reasonably request.
(ix) Irrevocable notice to the administrative agent under the Existing Credit Facility notifying such agent of the termination of the "Commitments" of the lenders thereunder, effective on or before the Closing Date.
(a) The "Commitments" under the Existing Credit Facility shall have been terminated and all amounts outstanding thereunder shall have been (or will have been, upon the first Advance and the application of the proceeds thereof on the Closing Date) paid in full.
(b) All fees and other amounts payable pursuant to Section 2.02 hereof or pursuant to the Fee Letter shall have been paid (to the extent then due and payable).
(c) the The Administrative Agent shall have received evidencesuch other approvals, satisfactory to opinions and documents as the Majority Lenders, through the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers have reasonably requested as to the Effective Datelegality, validity, binding effect or enforceability of this Agreement or the financial condition, operations, properties or prospects of each Borrower.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement Amendment (including the Commitments of the Lenders agreements in Section 1 and the obligations of amendments to the Borrower hereunderCredit Agreement contained in Section 2) shall become effective if, on or before April 15, 2011, all of the date on which the following conditions precedent have been satisfied:shall be satisfied (such date, the “Second Amendment Effective Date”):
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds each of the initial Credit Extensionsfollowing, each of which shall be originals or facsimiles (followed promptly by originals) all amounts then payable unless otherwise specified, each properly executed by a Responsible Officer of the Borrower under signing Loan Party and, in the Existing Credit Facility and that all commitments to make extensions case of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received clause (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of below, by the following documents2017 Incremental First Lien Lender, each dated as of the Second Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and otherwise (and, in form and substance satisfactory to the Administrative case of clause (vii) below, the Collateral Agent:):
(i) Certified copies executed counterparts of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyAmendment;
(ii) A certificate resolutions or authorizations of each Loan Party authorizing the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement Amendment and, in the case of the Borrower, the borrowings hereunder, and the documents contemplated herebya certification of a Responsible Officer of each Loan Party that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(iii) A certificate signed by either the chief financial officer, principal accounting officer Organization Documents of each Loan Party or treasurer a certification by a Responsible Officer of each Loan Party that there have been no changes to the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date Organization Documents of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on Loan Party since the date of such certificate; andClosing Date;
(iv) A either incumbency certificates of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Responsible Officers set forth on the incumbency certificates of such Loan Party delivered on the Closing Date;
(v) good standing certificates evidencing that each Loan Party is duly organized or formed and that each Loan Party is validly existing and in good standing;
(vi) a favorable opinion of (x) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the BorrowerLoan Parties and (y) Eversheds ▇▇▇▇▇▇▇▇▇▇ (US) LLP, special Georgia counsel to the Loan Parties, in each case dated the Second Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent, the 2017 Incremental First Lien Lender and the Lenders, in form and substance reasonably acceptable satisfactory to the Administrative Agent and the Collateral Agent;
(vii) a customary certificate, substantially in the form of Exhibit J to the Credit Agreement from the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the 2017 Incremental First Lien Term Commitment, the 2017 Incremental First Lien Term Loan and the other transactions contemplated hereby, are Solvent; and
(viii) a certificate, dated as of the Second Amendment Effective Date, duly executed by a Responsible Officer of Holdings (A) certifying that the conditions precedent set forth in Sections 3(b), 3(c) and 3(d) have been satisfied as of the Second Amendment Effective Date and (B) setting forth calculations in reasonable detail demonstrating compliance with the First Lien Leverage Ratio set forth in Section 2.12(a) of the Credit Agreement, after giving effect on a Pro Forma Basis to the incurrence of the 2017 Incremental First Lien Term Commitment;
(ix) a notice of prepayment in full of the Existing Term Loans pursuant to and in accordance with Section 2.03(a)(i) of the Credit Agreement; and
(x) a Committed Loan Notice with respect to the 2017 Incremental First Lien Term Loan, not later than 10:00 a.m. (New York City time) one (1) Business Day prior to the Second Amendment Effective Date;
(b) the conditions precedent set forth in Section 4.02 of the Credit Agreement shall have been satisfied both before and after giving effect to this Amendment and the additional credit extensions provided hereby;
(c) the representations and warranties of the Loan Parties contained in Section 4 shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date;
(d) at the time of the Borrower’s request for the 2017 Incremental First Lien Term Commitment, upon the effectiveness of this Amendment and at the time that the 2017 Incremental First Lien Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist;
(e) the Borrower shall have applied, concurrently with the making of the 2017 Incremental First Lien Term Loan, the proceeds of the 2017 Incremental First Lien Term Loan to prepay in full the aggregate principal amount of all Existing Term Loans outstanding on the Second Amendment Effective Date;
(f) the Administrative Agent shall have received evidencereceived:
(i) at least three Business Days prior to the Second Amendment Effective Date, satisfactory all documentation and other information about the Loan Parties as shall have been reasonably requested in writing prior to the Second Amendment Effective Date by the Lenders that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act; and
(ii) for the account of each Lender (as defined in the Credit Agreement) with an Existing Term Loan (A) all interest accrued but unpaid on the Existing Term Loans through the Second Amendment Effective Date and (B) unless waived by such Lender, any loss, cost or expense due to such Lender under Section 3.05 of the Credit Agreement;
(iii) for the account of the 2017 Incremental First Lien Lender, a fee in an amount equal to 0.25% of the 2017 Incremental First Lien Term Loan (which in the case of any portion of the 2017 Incremental First Lien Term Loan that exceeds the Existing Term Loans shall be structured as original issue discount);
(g) there shall have been paid (i) to the Administrative Agent, that for the Borrower has paid (or will pay with the proceeds account of the initial Credit Extensions) Administrative Agent and the Lenders (including the 2017 Incremental First Lien Lender), as applicable, all fees and, to the extent billedrequired by Section 10.04 of the Credit Agreement, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable by on or before the Borrower hereunder on the Second Amendment Effective Date and (including amounts then payable ii) to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify or an Affiliate thereof, all other compensation separately agreed to be paid on the Borrower, the Lenders and the LC Issuers as to the Second Amendment Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations obligation of each Lender and each LC Issuing Bank to make its initial Extension of Credit hereunder on the Borrower hereunder) shall become effective if, on or before April 15, 2011, all Restatement Effective Date is subject to satisfaction of each the following conditions precedent have been satisfiedon or before such date:
(a) the The Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentson or before the Restatement Effective Date, each dated a such date reasonably satisfactory to (except for the Administrative Agent Disclosure Documents and otherwise the Fee Letters), in form and substance satisfactory to the Administrative AgentAgent and (except for the notes described in paragraph (i) and the Fee Letters) with one copy for each Lender and each LC Issuing Bank:
(i) (A) This Agreement, duly executed by each of the parties hereto, and (B) a promissory note payable to the order of each Lender that requests one pursuant to Section 2.17, ▇▇▇▇ completed and executed by the Borrower;
(ii) Certified copies of the resolutions of the Board of Directors or equivalent managing governing body of the Borrower approving the transactions contemplated by this Agreement Agreement, and of all documents evidencing other necessary organizational limited liability company action of the Borrower with respect to this Agreement and the documents contemplated herebyAgreement;
(iiiii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case as in effect on such datethe Restatement Effective Date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals (if any) required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated herebyAgreement;
(iiiiv) A certificate signed Copies of all the Disclosure Documents (it being agreed that such Disclosure Documents will be deemed to have been delivered under this clause (iv) if such documents are publicly available on ▇▇▇▇▇ or on the Borrower’s website no later than the third Business Day immediately preceding the Restatement Effective Date);
(v) One or more favorable opinions of counsel (including the opinions of in-house counsel and special New York and Texas counsel) for the Borrower in form and substance satisfactory to the Administrative Agent;
(vi) The Fee Letters duly executed by either the chief financial officer, principal accounting officer or treasurer each of the parties thereto;
(vii) All documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders prior to the Restatement Effective Date; and
(viii) At least five (5) days prior to the Restatement Effective Date, if the Borrower stating qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(b) The Borrower shall have paid to the Lenders all accrued and unpaid fees pursuant to Section 2.04 of the Existing Credit Agreement, and any other amounts then due and owing by the Borrower to the Lenders pursuant to the Existing Credit Agreement (other than the Advances and participation amounts that are continuing to remain outstanding under this Agreement).
(Ac) The Administrative Agent shall have received the fees payable pursuant to the Fee Letters.
(d) The following statements shall be true:
(i) The representations and warranties contained in Section 4.01 are true and correct on and as of the date of such certificate as though made on Restatement Effective Date; and
(ii) No event has occurred and as of such date is continuing, or would result from the Borrower entering into the Loan Agreement and (B) no the other Loan Documents, that constitutes an Event of Default or Unmatured would constitute an Event of Default has occurred and is continuing on the date with notice or lapse of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (time or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Dateboth.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The amendment and restatement of the Lenders and the obligations of the Borrower hereunder) Original Loan Agreement pursuant hereto shall become effective if, on or before April 15, 2011, and as of the first date (the “Effective Date”) on which all of the following conditions precedent shall have been satisfied:
(a) the Administrative The Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid received:
(or will pay with the proceeds i) an original of the initial Credit Extensions) all amounts then payable this Agreement duly executed by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedparties hereto;
(bii) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf in respect of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each Obligor, documents of the following documentskind specified in Schedule 3, Part A, paragraphs 2, 3, 4, 5 and 6, updated with appropriate modifications, each dated a date reasonably satisfactory to the Administrative Agent and otherwise be in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either a duly executed original of an addendum to the chief financial officer, principal accounting officer or treasurer Mortgage in respect of each of the Borrower stating ▇▇▇▇▇▇▇▇ Islands registered AUGUSTA, HELENA, LANSING, PIERRE and RICHMOND, each such addendum to be in form and substance satisfactory to the Agent;
(iv) a duly executed original of each Second Statutory Mortgage in respect of each of the Cypriot registered AUSTIN and TRENTON, each such Second Statutory Mortgage to be in form and substance satisfactory to the Agent;
(v) documentary evidence that the relevant Mortgage addendum has been duly recorded according to the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands against each of the AUGUSTA, HELENA, LANSING, PIERRE and RICHMOND;
(Avi) documentary evidence that the relevant Second Statutory Mortgage has been duly recorded according to the laws of the Republic of Cyprus against each of the AUSTIN and TRENTON;
(vii) any consents, agreements and other documents in connection with this Agreement and the Finance Documents which the Agent may request by notice to the Obligors prior to the Effective Date, including, without limitation, a certificate of the president or secretary of each Intermediate Holding Company dated the date of this Agreement:
(1) as to (a) there being no amendments to its constitutional documents since the date such documents were delivered previously to the Agent, (b) the absence of any proceedings for the dissolution or liquidation of such party, (c) the veracity of the representations and warranties contained in Section 4.01 are correct on the Share Pledge made by such party, (d) the absence of any material misstatement of fact in any information provided by such party to the Agent and as that such information did not omit to state any material fact necessary to make statements therein, in light of the date of such certificate as though made on and as of such date circumstances under which they were made, not misleading, and (Be) no the absence of a Potential Event of Default or Unmatured an Event of Default has occurred and is continuing on the date of such certificateDefault; and
(iv2) A acknowledging this Agreement and confirming that such party’s Share Pledge remains in full force and effect;
(viii) a favorable opinion of ▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇ LLP, special New York, ▇▇▇▇▇▇▇▇ Islands and Liberian counsel for to the BorrowerObligors, in form form, scope and substance reasonably acceptable satisfactory to the Administrative AgentCredit Parties; and
(cix) a favorable opinion of each of special Cypriot and Maltese counsel to the Administrative Agent shall have received evidenceCredit Parties, in form, scope and substance satisfactory to the Administrative AgentCredit Parties.
(b) No Event of Default or Potential Event of Default shall have occurred and be continuing and there shall have been no material adverse change in the financial condition, that the Borrower has paid (operations or will pay with the proceeds business prospects of the initial Credit Extensions) all fees and, to Obligors since the extent billed, expenses payable by date of the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateOriginal Loan Agreement.
Appears in 1 contract
Sources: Loan Agreement (Oceanfreight Inc.)
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including and the Commitments of the Lenders hereunder and the obligations to make the Loans or issue Letters of Credit on the Borrower hereunder) shall become effective ifClosing Date are subject to the prior or substantially contemporaneous fulfillment or waiver ofRestatement Effective Date. On the Restatement Effective Date, on or before April 15, 2011, all each of the following conditions precedent shall have been satisfiedsatisfied or waived:
(a) the The Administrative Agent and the Lenders shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agentfollowing:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebySubsidiary Guaranty (or one or more joinders thereto), each duly executed and delivered and which shall be in full force and effect;
(ii) A certificate duly executed Security Documents (or one or more joinders thereto) together with all filings, documents and instruments necessary, including any reaffirmation deeds or agreements reasonably requested by the Administrative Agent, to confirm the perfection of the Secretary or an Assistant Secretary Administrative Agent’s Liens on the Collateral with the priority required hereby, and all of Borrower certifying the pledged Collateral, if any, referred to in the Security Documents and then owned by any Credit Party, together with executed and undated endorsements for transfer in the case of pledged Collateral constituting securities, along with evidence that all other actions necessary to perfect (Ato the extent required by the Security Documents) the names and true signatures of Lien on the officers of the Borrower authorized to sign this Agreement and the other documents pledged Collateral purported to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance created by the Borrower of this Agreement and the documents contemplated herebySecurity Documents have been taken;
(iii) A a duly executed Perfection Certificate;
(iv) duly executed Notes for any Lender that requests Notes at least three (3) Business Days prior to the ClosingRestatement Effective Date;
(v) duly executed certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that secretary (or similar Authorized Signatory) of each Credit Party dated as of the ClosingRestatement Effective Date, including a certificate of incumbency with respect to two or more than two Authorized Signatories of such Person, together with the following items: (A) a true, correct and complete copy of each Organizational Document of such Credit Party as in effect on the representations ClosingRestatement Effective Date, (B) certificates of status (or equivalent) for such Credit Party issued by the Secretary of State or similar state official for the state of incorporation, formation or organization of such Credit Party, as applicable, and warranties contained in Section 4.01 are (C) a true, complete and correct on and as copy of the date corporate or other organizational resolutions of such certificate Credit Party authorizing such Credit Party, as though applicable, to execute, deliver and perform the Loan Documents to which such Credit Party is a party;
(vi) legal opinions of DLA Piper LLP (US), counsel to the Credit Parties in form and substance reasonably acceptable to the Administrative Agent;
(vii) duly executed Solvency Certificate demonstrating that upon the initial funding of the Loans, on a consolidated basis, the Borrower shall be Solvent;
(A) upon the reasonable written request of any Lender or the Administrative Agent made on at least ten (10) Business Days prior to the ClosingRestatement Effective Date, documentation and as of such date other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws, including the Patriot Act, in each case, at least three (3) Business Days prior to the ClosingRestatement Effective Date, and (B) no Event upon the written request of Default any Lender or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andAdministrative Agent made at least five (5) Business Days prior to the ClosingRestatement Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower at least three (3) Business Days prior to the ClosingRestatement Effective Date;
(ivA) A favorable opinion a customary pro forma balance sheet and pro forma income statements for the Borrower and its Restricted Subsidiaries as of the last day and for the most recent period of four (4) consecutive Fiscal Quarters ending at least forty-five (45) days prior to the Closing DateRestatement Effective Date and after giving effect to the Restatement Effective Date Transactions; (B) audited consolidated balance sheets and relatedfinancial statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiariesthe Target for the Fiscal YearYears ended DecemberAugust 31, 2018, August 30, 2019, and August 28, 2020, (C) an unaudited balance sheet and related statements of operations and cash flows of the Borrower and its Restricted Subsidiaries for each Fiscal Quarter subsequent to December 31, 20182020, and ended at least forty-five (45) days prior to the ClosingRestatement Effective Date and, (D) an unaudited balance sheet and related statements of operations and cash flows of the Sweetener Business of Flavors Holdings Inc. and the Licorice Business of Flavors Holdings ▇▇▇.▇▇▇▇▇▇ ▇▇▇▇▇ LLPand its Subsidiaries for each Fiscal Quarter ended on or after March 31, counsel 2020, but solely to the extent such Fiscal Quarter hassubsequent to August 28, 2020, and ended at least forty-five (45) days prior to the Closing Date;Restatement Effective Date, and (E) Projections for the BorrowerBorrower satisfactory to the Administrative Agent (including the assumptions on which such Projections are based) for Fiscal Years 2021 through and including 2027;
(x) a duly executed and delivered Request for Advance (and, if applicable, a duly executed and delivered Request for Issuance of Letter of Credit);
(xi) Lien search results with respect to the Borrower and its Subsidiaries reasonably satisfactory to the Administrative Agent;
(xii) reasonably satisfactory evidence that all guarantees of the Existing Credit AgreementsIndebtedness for Money Borrowed that is outstanding under the Falcon Term Loan Agreement (as defined in the Acquisition Agreement) will be paid in full, all Guarantees by the Target and its Subsidiaries have been terminated or will be terminated substantially concurrently with the funding of the initial Advances hereunderRestatement Effective Date Transactions and all Liens shall thereupon be released;
(xiii) duly executed payoff letters, in form and substance reasonably acceptable to the Administrative Agent, or other evidence reasonably satisfactory to the Administrative Agent that all other Indebtedness of the Borrower and its Subsidiaries and the Target and its Subsidiaries shall have been repaid in full, and all commitments in respect thereof terminated, and all guaranteesGuarantees and security therefor shall have been discharged and released, other than the Indebtedness that is permitted to remain in effect under the terms of the Acquisition Agreement;
(xiv) evidence satisfactory to the Administrative Agent that none of the Collateral shall be subject to any other Lien, except for Permitted Liens and Liens securing Indebtedness that will be refinanced in full and to be released concurrently with the funding of the initial Advances hereunder; and
(cxv) the use of commercially reasonable efforts to provide customary evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and all premiums thereon paid and that the Administrative Agent shall have received evidencehas been named as lenders loss payee and/or additional insured, satisfactory to the Administrative Agentas applicable, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, under each appropriate insurance policy to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Daterequired hereunder.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Whole Earth Brands, Inc.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15November 30, 20112006, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility Facilities and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇B▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & I▇▇▇▇▇▇▇▇, LLP, counsel for the Borrower, substantially in the form and substance reasonably acceptable to the Administrative Agent; andof Exhibit D;
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Co-Lead Arrangers and the Agents); and
(d) the “Effective Date” (as defined in the $1,000,000,000 Credit Agreement of even date herewith among Exelon, various financial institutions and JPMorgan Chase Bank, N.A., as administrative agent) shall have occurred. Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Exelon Corp)
Conditions Precedent to Effectiveness. This Agreement (including shall be effective upon the Commitments satisfaction of the Lenders and conditions precedent that the obligations of the Borrower hereunder) Purchaser shall become effective if, have received on or before April 15the Closing Date, 2011, all of the following conditions precedent have been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentPurchaser, all of the following:
(i) Certified copies a copy of resolutions this Agreement duly executed by each of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyparties hereto;
(ii) A a certificate of the Secretary or an Assistant Secretary of Borrower the Seller, dated the Closing Date, certifying (A) the names and true signatures of the incumbent officers of the Borrower Seller authorized to sign on behalf of the Seller this Agreement Agreement, the First Tier Loan Assignments and the all other documents to be delivered hereunder; executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii)), (B) that attached thereto are true the copy of the articles of incorporation of the Seller is a complete and correct copies copy and that such articles of the organizational documents of the Borrowerincorporation have not been amended, modified or supplemented and are in each case in effect on such date; full force and effect, (C) that attached thereto the copy of the by-laws of the Seller are true a complete and correct copies copy, and that such by-laws have not been amended, modified or supplemented and are in full force and effect, and (D) the resolutions of all governmental the board of directors of the Seller approving and regulatory authorizations and approvals required for authorizing the due execution, delivery and performance by the Borrower Seller of this Agreement Agreement, the First Tier Loan Assignments and all other documents to be executed by the documents contemplated herebySeller hereunder or in connection herewith;
(iii) A certificate signed a good standing certificate, dated as of a recent date for the Seller, issued by either the chief financial officer, principal accounting officer or treasurer Secretary of State of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and Seller’s State of formation or incorporation, as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andapplicable;
(iv) A favorable opinion filed, original copies of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPproper financing statements (the “Facility Financing Statements”) describing the Sale Portfolio, counsel for and naming the BorrowerSeller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Purchaser’s ownership interest in all Sale Portfolio;
(v) copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller;
(vi) copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Administrative Purchaser and its assigns), dated a date reasonably near to the Closing Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller (under its present name and any previous name) as debtor and which are filed in the State of Maryland, together with copies of such financing statements (none of which shall cover any Sale Portfolio);
(vii) all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser and the Agent, and the Purchaser and the Agent shall have received from the Seller copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser and the Agent may have reasonably requested;
(viii) any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Purchaser;
(ix) the Seller shall have paid all fees required to be paid by it on the Closing Date; and
(cx) the Administrative Agent shall have received evidence, satisfactory one or more favorable Opinions of Counsel from counsel to the Administrative Agent, that Seller with respect to the Borrower has paid (or will pay with the proceeds perfection and enforceability of the initial Credit Extensions) all fees and, to security interest hereunder and such other matters as the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DatePurchaser or any assignee thereof may reasonably request.
Appears in 1 contract
Sources: First Tier Purchase and Sale Agreement (Ares Capital Corp)
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations obligation of each Lender and each LC Issuing Bank to make its initial Extension of Credit hereunder on the Borrower hereunder) shall become effective if, on or before April 15, 2011, all Restatement Effective Date is subject to satisfaction of each the following conditions precedent have been satisfiedon or before such date:
(a) the The Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentson or before the Restatement Effective Date, each dated a such date reasonably satisfactory to (except for the Administrative Agent and otherwise Disclosure Documents), in form and substance satisfactory to the Administrative AgentAgent and (except for the notes described in paragraph (i)) with one copy for each Lender and each LC Issuing Bank:
(i) (A) This Agreement, duly executed by each of the parties hereto, and (B) a promissory note payable to each Lender that requests one pursuant to Section 2.17, duly completed and executed by the Borrower;
(ii) Certified copies of the resolutions of the Board of Directors or equivalent managing governing body of the Borrower approving the transactions contemplated by this Agreement Agreement, and of all documents evidencing other necessary organizational limited liability company action of the Borrower with respect to this Agreement and the documents contemplated herebyAgreement;
(iiiii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case as in effect on such datethe Restatement Effective Date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals (if any) required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated herebyAgreement;
(iiiiv) A certificate signed Copies of all the Disclosure Documents (it being agreed that such Disclosure Documents will be deemed to have been delivered under this clause (iv) if such documents are publicly available on ▇▇▇▇▇ or on the Borrower’s website no later than the third Business Day immediately preceding the Restatement Effective Date);
(v) One or more favorable opinions of counsel (including the opinion of in-house counsel and special New York and Texas counsel) for the Borrower in form and substance satisfactory to the Administrative Agent;
(vi) All documentation and information required by either regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the chief financial officerPatriot Act, principal accounting officer to the extent such documentation or treasurer information is requested by the Administrative Agent on behalf of the Lenders prior to the Restatement Effective Date; and
(vii) At least five (5) days prior to the Restatement Effective Date, if the Borrower stating that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower must deliver a Beneficial Ownership Certification in relation to Borrower.
(Ab) The Administrative Agent shall have received on behalf of each Departing Lender, payment in full of all “Advances” (as defined in the Existing Credit Agreement) of such Departing Lender outstanding as of the Restatement Effective Date, together with all interest accrued and unpaid thereon, any amounts owing in respect of such payment pursuant to Section 8.04(b) of the Existing Credit Agreement, all accrued and unpaid fees pursuant to Section 2.04 of the Existing Credit Agreement, and any other amounts then due and owing by the Borrower to such Departing Lender pursuant to the Existing Credit Agreement on the Restatement Effective Date.
(c) The Borrower shall have paid to the Lenders all accrued and unpaid fees pursuant to Section 2.04 of the Existing Credit Agreement, and any other amounts then due and owing by the Borrower to the Lenders pursuant to the Existing Credit Agreement (other than the Advances and participation amounts that, pursuant to Section 8.20, are being reallocated and/or continuing to remain outstanding under this Agreement).
(d) The Administrative Agent shall have received the fees payable pursuant to the Fee Letters.
(e) The following statements shall be true:
(i) The representations and warranties contained in Section 4.01 are true and correct on and as of Restatement Effective Date; and
(ii) No event has occurred and is continuing, or would result from the date of such certificate as though made on Borrower entering into the Agreement and as of such date and (B) no the other Loan Documents, that constitutes an Event of Default or Unmatured would constitute an Event of Default has occurred and is continuing on the date with notice or lapse of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (time or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Dateboth.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations of each 2015 Incremental Term Lender to make 2015 Incremental Term Loans shall be subject to the Borrower hereunder) shall become effective if, on satisfaction or before April 15, 2011, all waiver of the following conditions precedent have been satisfied:(the first Business Day on which such conditions precedent are so satisfied or waived, the “Second Amendment Effective Date”):
(a) the Administrative Agent shall have received evidencecounterparts of this Agreement that, when taken together, bear the signatures of (i) the Borrower, Holdings and the Guarantors, (ii) the Administrative Agent, (iii) each 2015 Incremental Term Lender and (iv) Lenders constituting the Required Lenders;
(b) at the time of and immediately after the Incremental Term Loan Transactions, no Default or Event of Default shall have occurred and be continuing;
(c) the representations and warranties set forth in Article III of the Credit Agreement and in each other Loan Document shall be true and correct (i) in the case of the representations and warranties qualified as to materiality, in all respects, and (ii) otherwise, in all material respects, in each case on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date;
(d) the Administrative Agent shall have received a certificate, dated as of the Second Amendment Effective Date and executed by a Financial Officer of the Borrower, certifying (i) as to the satisfaction of the conditions set forth in paragraphs (b) and (c) above, (ii) that the representations and warranties of each Loan Party set forth in Sections 6(a) hereof are true and correct in all material respects and (iii) that the representations and warranties contained in Sections 3.05 and 3.21 of the Credit Agreement are true and correct in all material respects; provided that (x) Section 3.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 5.04(a) and 5.04(b) of the Credit Agreement, respectively, prior to the Second Amendment Effective Date and (y) with respect to the representations and warranties in Section 3.21 of the Credit Agreement, the words “Closing Date” in each place set forth therein shall be deemed to be “Second Amendment Effective Date” and the word “Transactions” shall be deemed to be “Incremental Term Loan Transactions”;
(e) the Administrative Agent shall have received a notice of Borrowing in respect of the 2015 Incremental Term Loans on the date hereof in accordance with the terms hereof;
(f) the Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to the Administrative Agent, from the chief financial officer of Holdings to the effect that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Incremental Term Loan Transactions, are solvent;
(g) the Administrative Agent shall have received, on behalf of itself and the Lenders, a favorable written opinion of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Rosenman LLP, counsel for Holdings and the Borrower has paid and (or will pay with the proceeds ii) each local counsel listed on Schedule 4.02(b) of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit Agreement, in each case (A) dated the Second Amendment Effective Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders, and (C) in customary form and substance for transactions of this type, and Holdings and the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedhereby request such counsel to deliver such opinions;
(bh) the Administrative Agent shall have received (i) a counterpart copy of this Agreement signed on behalf the certificate or articles of incorporation, certificate of formation or other constitutive document, including all amendments thereto, of each party hereto or Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State (or, in each case, a comparable governmental official, if available); (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower each Loan Party dated the Second Amendment Effective Date and certifying (A) the names that attached thereto is a true and true signatures complete copy of the officers by-laws, or operating, management or partnership agreement of such Loan Party as in effect on the Second Amendment Effective Date and at all times since a date prior to the date of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; resolutions described in clause (B) below, (B) that attached thereto are is a true and correct copies complete copy of resolutions duly adopted by the organizational documents board of directors, board of managers or members of other governing body, as applicable, of such Loan Party authorizing the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation, partnership agreement or other constitutive document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents contemplated herebyas the Lenders or the Administrative Agent may reasonably request;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(ci) the Administrative Agent shall have received evidencereceived, satisfactory at least five Business Days prior to the Second Amendment 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 USA PATRIOT Act, that has been reasonably requested by the Administrative Agent or any 2015 Incremental Term Lender;
(j) the Administrative Agent shall have received, substantially concurrently with the making of the 2015 Incremental Term Loans, (i) the aggregate Consent Fee (as defined below) and (ii) all Fees and other amounts due and payable to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees andincluding, to the extent billedinvoiced, reimbursement or payment of all out-of-pocket expenses payable (including the reasonable fees, disbursements and other charges of legal counsel) required to be reimbursed or paid by Holdings and the Borrower under the Credit Agreement or under any other Loan Document; and
(k) Credit Suisse Securities (USA) LLC shall have received all fees and expenses separately agreed in writing by the Borrower hereunder on the Effective Date and Credit Suisse Securities (including amounts then payable to the Joint Active Lead Arrangers and the Agents)USA) LLC in connection herewith. Promptly upon the occurrence thereof, the The Administrative Agent shall notify the Borrower, Borrower of the Lenders and the LC Issuers as to the Second Amendment Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: Second Amendment and First Incremental Assumption Agreement (Diamond Resorts International, Inc.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Amendment shall become effective if, on or before April 15, 2011, all as of the following conditions precedent have been satisfied:
(a) date of this Amendment when, and only when, the Administrative Agent shall have received evidencethe following, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(a) counterparts of this Amendment, duly executed by an Authorized Officer of each Credit Party, New Borrower, each Opco Mortgagor, each Pledgor, Administrative Agent and the Lenders, including, without limitation, the New Lenders;
(b) amended and restated Notes reflecting the Incremental Advance Loans and the addition of New Borrower, duly executed by an Authorized Officer of each of New Borrower as a Person comprising Borrower and the other Persons comprising Borrower;
(c) an Assumption Agreement (as described in the Security Agreement), duly executed by an Authorized Officer of New Borrower;
(d) an Opco Mortgagor Guaranty Agreement, duly executed by ; [Redacted: identifying names]
(e) except as otherwise provided on Schedule 8.15 of the Credit Agreement, (i) Certified copies of resolutions of the Board of Directors Mortgages, or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower amendments thereof, with respect to this the owned Real Property of a Credit Party that constitutes Collateral listed on Schedule 7.15(a) of the Credit Agreement and the documents contemplated herebyReal Property owned by Opco Mortgagors, duly executed by Credit Party or Opco Mortgagor party thereto and, for the avoidance of doubt, securing all obligations under the Credit Agreement, as amended by this Amendment, and (ii) evidence that a counterpart of each such Mortgage or amendment thereof has been recorded, or that arrangements for recording reasonably satisfactory to Administrative Agent have been made, in the place necessary, in the Collateral Agent’s reasonable judgment, to create a valid and enforceable first priority Lien in favor of the Collateral Agent for the benefit of itself, the Lenders and the other Secured Parties;
(iif) A executed legal opinions of Dentons US LLP, counsel to the Credit Parties, New Borrower and Opco Mortgagors and Dentons Canada LLP, Canadian counsel to the Credit Parties, which opinions shall be addressed to the Agents and the Secured Parties and shall be in form and substance reasonably satisfactory to the Administrative Agent;
(g) a certificate for each Credit Party, New Borrower and each Opco Mortgagor, duly executed and delivered by an Authorized Officer of each such Person, as to: (i) resolutions of each such Person’s board of managers or directors (or other managing body, in the case of a Person that is not a corporation) then in full force and effect expressly and specifically authorizing, to the extent relevant, all aspects of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized Credit Documents applicable to sign this Agreement such Person and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance of each Credit Document, in each case, to be executed by such Person; (ii) the Borrower incumbency and signatures of this Agreement its Authorized Officers and the documents contemplated hereby;
any other of its officers, directors, members, trustees, managers, managing member or general partner, as applicable, authorized to act with respect to each Credit Document to be executed by such Person; and (iii) A certificate signed by either the chief financial officereach such Person’s Organization Documents, principal accounting officer as amended, modified or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and supplemented as of the date hereof, certified by the appropriate officer or official body of the jurisdiction of organization of such certificate as though made on and as Person, or, for each of such date clauses (i), (ii) and (Biii) no Event above, a confirmation that such documents have not changed since the most recent certification to Administrative Agent;
(h) the results of Default a search of the UCC and PPSA filings (or Unmatured Event equivalent filings), in addition to tax Lien and judgment Lien searches made with respect to each Credit Party and New Borrower, together with copies of Default has occurred the financing statements and is continuing on other filings (or similar documents) disclosed by such searches, and accompanied by evidence reasonably satisfactory to the date Collateral Agent that the Liens indicated in any such financing statement and other filings (or similar document) are Permitted Liens or have been released or will be released substantially simultaneously with the making of such certificatethe Loans under the Credit Agreement;
(i) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof; and
(ivj) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPsuch other documents to be executed by the Credit Parties, counsel for the Borrower, in form Opco Mortgagors and substance New Borrower as may be reasonably acceptable to requested by the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Effectiveness. This Agreement will become effective upon the following conditions being met (unless waived in writing by all Lenders) including the Commitments receipt, where applicable, by the Agent, for and on behalf of the Lenders and the obligations of the Borrower hereunder) shall become effective ifLenders, on or before April 15, 2011, all of the following conditions precedent have been satisfieddocuments each in full force and effect, and in form and substance satisfactory to the Lenders, acting reasonably:
(a) the Administrative Agent this Agreement shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable been duly executed and delivered by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedBorrower;
(b) the Administrative KNOC Guarantee and an Affiliate Subordination Agreement shall have been duly executed and delivered by KNOC;
(c) a confirmation and amendment of the Existing Security shall have been duly executed and delivered by the Harvest Parties, KNOC and Ankor E&P Holdings Corporation, as applicable;
(d) the Agent shall have received (i) a counterpart the audited December 31, 2014 annual financial statements of this Agreement signed on behalf of each party hereto or the Borrower, (ii) written evidence unaudited September 30, 2014 consolidated quarterly financial statements of KNOC and (iii) independent engineering reserve report covering the Oil and Gas Properties of the Harvest Parties dated December 31, 2014 (which may include electronic transmission be in draft form), all of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably which are satisfactory to the Administrative Agent and otherwise the Lenders, acting reasonably;
(e) the Agent shall have received satisfactory evidence that the KNOC Debt Rating is no less than A from S&P and A2 from ▇▇▇▇▇'▇;
(f) the Agent shall have received satisfactory evidence that, as of the Effective Time, the sum of (i) the Aggregate Commitment Amount less the Canadian Dollar Exchange Equivalent of the Aggregate Principal Amount owing to all Lenders plus (ii) the aggregate amount of all Unrestricted Cash is at least $50,000,000;
(g) the Agent shall have received a withdrawal letter from each Existing Lender that is not continuing as a Lender, duly executed by such Existing Lender, the Agent and the Borrower;
(h) all documentation requested by any Lender acting reasonably in form and substance satisfactory order to the Administrative Agent:ensure compliance with "know your client" requirements as contemplated by Section 22.13;
(i) Certified copies the Agent and the Lenders shall have received favourable legal opinions from (i) Borrower's Counsel and Lenders' Counsel in respect of resolutions each Harvest Party and (ii) ▇▇▇, ▇▇▇ & ▇▇▇ LLC, in each case which confirms, among other things, the enforceability of the Board applicable Documents;
(j) the Borrower shall have paid all fees and expenses then due in respect of Directors this Agreement;
(k) no Default or equivalent managing body Event of Default shall have occurred and be continuing;
(l) the representations and warranties in Article 13 and in any other Document shall be true, complete and correct on and with effect from the date of this Agreement; and
(m) the Agent and the Lenders shall have received in respect of each Harvest Party and KNOC (unless otherwise specified):
(i) a certificate of status, certificate of compliance, good standing or similar certificate issued by an appropriate Administrative Body of the Borrower approving jurisdiction of organization of such Person, to the transactions contemplated extent such certificate is issued by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyan Administrative Body in such jurisdiction;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents in respect of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies a certificate of all governmental and regulatory authorizations and approvals required for incumbency with specimen signatures of the due execution, delivery and performance by individuals executing any of the Documents to which the Borrower of this Agreement and the documents contemplated hereby;is a party; and
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer in respect of the Borrower stating that and each Material Subsidiary a certificate from an officer of such Subsidiary attaching certified copies of (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date its constating documents and (B) no Event resolutions of Default or Unmatured Event of Default has occurred its governing body authorizing the execution and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds delivery of the initial Credit Extensions) all fees and, Documents to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datewhich it is a party.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The effectiveness of the Lenders amendment and the obligations restatement of the Borrower hereunderExisting Credit Agreement is subject to the satisfaction (or waiver pursuant to Section 10.01) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfiedprecedent:
(a) the The Administrative Agent shall have received evidencethe following, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentswhich shall be originals or e-mailed copies (followed promptly by originals), each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date reasonably satisfactory to before the Administrative Agent Effective Date), and otherwise each in form and substance reasonably satisfactory to the Administrative Agent:
(i) Certified copies executed counterparts of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyAgreement;
(ii) A certificate Notes executed by the Borrowers in favor of each Lender requesting Notes;
(iii) certificates of resolutions or other equivalent action and incumbency certificates of Responsible Officers of each Loan Party evidencing the Secretary or an Assistant Secretary identity, authority and capacity of Borrower certifying (A) the names and true signatures of the officers of the Borrower each Responsible Officer thereof authorized to sign act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) documents and certifications evidencing that each Loan Party is validly existing and in good standing and qualified to be delivered hereunder; engage in business in its jurisdiction of organization;
(v) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) other than as publicly disclosed prior to July 31, 2019, that attached thereto are true and correct copies there has been no event or circumstance since the date of the organizational documents of Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the Borroweraggregate, in each case in effect on such datea Material Adverse Effect; and (C) that attached thereto the current Debt Ratings and (D) that, except as set forth on Schedule 5.06(b), there are true and correct copies of all governmental and regulatory authorizations and approvals required for no actions, suits, investigations or proceedings pending or, to the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer knowledge of the Borrower stating Company, threatened in any court or before any arbitrator or governmental authority that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificatewould reasonably be expected to have a Material Adverse Effect; and
(ivvi) A favorable opinion opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Senior Vice President, Chief Legal Officer and Secretary of the Company and (ii) Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel for to the BorrowerLoan Parties, in each case in form and substance reasonably acceptable satisfactory to the Administrative Agent; and.
(b) All accrued and invoiced fees and expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have been paid.
(c) (i) Upon the reasonable request of any Lender made at least 10 Business Days prior to the Effective Date, the Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the AML Legislation, in each case at least 5 Business Days prior to the Effective Date and (ii) at least 10 Business Days prior to the Effective Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, at least 5 Business Days prior to the Effective Date, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received evidence, satisfactory notice from such Lender prior to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the proposed Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents)specifying its objection thereto. Promptly upon the occurrence thereof, the The Administrative Agent shall notify the Borrower, Company and the Lenders and of the LC Issuers as to occurrence of the Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this ------------------------------------- Agreement (including the Commitments of the Lenders and the obligations of each Lender hereunder are subject to the Borrower hereunder) shall become effective if, on prior or before April 15, 2011, all concurrent satisfaction of the following conditions precedent have been satisfied:
described in clauses (al)-(p) the Administrative Agent shall have received evidence, satisfactory and (s)-(t) below and to the Administrative Agent, that receipt by the Borrower has paid (or will pay with Agents and the proceeds Arranger of the initial Credit Extensionsdocuments described in clauses (a)-(k), (q)-(r) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will beu)-(w) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsbelow, each dated a date reasonably satisfactory to the Administrative Agent and Closing Date unless otherwise indicated, in form and substance satisfactory to each of the Administrative AgentAgents, the Arranger and the Lenders, in their sole judgment exercised reasonably, and (except for the Notes) in sufficient copies for each Lender:
(ia) A fully executed counterpart of this Agreement and a Revolving Credit Note, a Tranche A Term Note and a Tranche B Term Note payable to the order of each Lender;
(b) Certified copies of (i) the resolutions of the Board of Directors or equivalent managing body and the stockholders, where required, of the Borrower each Loan Party approving the transactions contemplated by this Agreement each Loan Document to which it is a party and of (ii) all documents evidencing other necessary organizational corporate action of the Borrower and required governmental and material third party approvals, licenses and consents with respect to this Agreement each Loan Document and the documents transactions contemplated herebythereby;
(iic) A copy of the certificate of incorporation of each Loan Party certified as of a recent date by the Secretary of State of the state of incorporation of such Loan Party, together with certificates of such official attesting to the good standing of each such Loan Party, and a copy of the bylaws of each Loan Party certified as of a recent date by the Secretary or an Assistant Secretary of such Loan Party;
(d) A certificate of the Secretary or an Assistant Secretary of Borrower each Loan Party certifying (A) the names and true signatures of other officers of such Loan Party who have been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of such Loan Party;
(e) A copy of each Related Document, fully executed or conformed, and certified as being complete and correct by a Responsible Officer of the officers Borrower;
(f) The Subsidiary Guaranty, duly executed by each Domestic Restricted Subsidiary and the Parent Guaranty, duly executed by each of KMSI and KCC;
(g) The Pledge Agreements, duly executed by each Loan Party party thereto, together with (i) delivery to the Administrative Agent of certificates representing the Pledged Shares and undated stock powers for such certificates executed in blank and (ii) evidence that all action necessary or, in the opinion of the Agents and the Arranger, desirable to perfect and protect the Liens created by the Pledge Agreements has been taken;
(h) The Borrower Security Agreement, duly executed by the Borrower, and the Subsidiary Security Agreement, duly executed by each Domestic Restricted Subsidiary, together with (i) duly executed financing statements (Form UCC-1) in proper form for filing under the Uniform Commercial Code in all jurisdictions as may be necessary or, in the opinion of the Agents and the Arranger, desirable to perfect and protect the Liens created by the Security Agreement and the Subsidiary Security Agreement, and (ii) evidence satisfactory to the Agents and the Arranger of the release of all Liens over the property of the Borrower authorized to sign this Agreement and the or any of its Subsidiaries other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance than Liens permitted by the Borrower of this Agreement and the documents contemplated herebySection 7.1;
(iiii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable An opinion of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇▇, counsel for to the Loan Parties, in the form of Exhibit J hereto;
(j) A certificate of the chief financial officer of the Borrower, stating that KCC, and KCC and its Subsidiaries, on a consolidated basis, are Solvent after giving effect to the transactions contemplated by this Agreement;
(k) A certificate, signed by a Responsible Officer of the Borrower, stating that the conditions specified in Sections 3.2(a), 3.2(b) and 3.3
(a) have been met;
(l) The capital, organizational and ownership structure of KMG and its Subsidiaries, both before and after giving effect to the Merger, shall be as described in Offering Memorandum dated December 13, 1996 relating to the Subordinated Notes or as is otherwise in form and substance reasonably acceptable satisfactory to the Administrative AgentAgents, the Arranger and the Lenders;
(m) All of the outstanding shares of KCC shall have been contributed by KMG to KMSI;
(n) Not less than 75% of the Debentures outstanding on the date of consummation of the Debenture Tender Offer shall have been purchased for cash pursuant to the Debenture Tender Offer at a maximum aggregate price (including any tender premium and consent payment) of 115% of the par value thereof plus accrued and unpaid interest thereon of a maximum aggregate amount of $2,000,000. The Borrower shall have obtained all such consents and amendments to the Debenture Indenture as may be required to permit the Borrower to borrow the Loans and to consummate the other transactions described herein. The terms and conditions of such consents and amendments shall be as described in the Debenture Tender Offer or as is otherwise in form and substance satisfactory to the Agents, the Arranger and the Majority Lenders. The Borrower shall otherwise be in compliance with its obligations under the Debenture Indenture;
(o) The Borrower shall have issued the Subordinated Notes in an aggregate principal amount of not less than $100,000,000. The terms and conditions of the Subordinated Notes, including, without limitation, with respect to the interest rates, covenants, defaults, remedies and subordination provisions shall be in form and substance satisfactory to the Agents, the Arranger and the Majority Lenders;
(p) All existing bank indebtedness of the Borrower under the Existing Credit Agreement and of KMSI under the KMS Credit Agreement, shall have been repaid in full (or arrangements satisfactory to the Agents for the repayment thereof from the proceeds of the Subordinated Notes and the Loans hereunder shall have been made), all commitments thereunder shall have been terminated and all liens securing all such Indebtedness shall have been released (or arrangements satisfactory to the Agents for the release thereof shall have been made). No other existing Indebtedness of the Borrower and its Subsidiaries shall remain outstanding after the application on the Closing Date of the proceeds of the Subordinated Notes and the Loans made on the Closing Date hereunder other than (i) Debentures not tendered in the Debenture Tender Offer, (ii) Indebtedness outstanding hereunder, (iii) the Subordinated Notes, (iv) Interest Rate Contracts permitted hereunder, (v) other Indebtedness described on Schedule 7.2 not exceeding $3,000,000 in aggregate principal amount and (vi) Indebtedness permitted under Section 7.2(iv);
(q) Copies of all legal opinions issued by counsel to any Loan Party or issued to any Loan Party relating to any transactions occurring on or about the Closing Date pursuant to any of the Related Documents, each of which opinions shall be accompanied by a written authorization from counsel issuing such opinion stating that the Agents and the Arranger and the Lenders may rely on such opinions as though such opinions (other than any opinion or any portion of an opinion in the nature of a "disclosure" opinion) were addressed to the Agents, the Arranger and the Lenders;
(i) Audited financial statements of the Borrower and its Subsidiaries for the Fiscal Years ended December 31, 1994 and 1995, (ii) unaudited financial statements of the Borrower and its Subsidiaries for the fiscal period ending on September 30, 1996, (iii) a pro forma balance sheet as of the Closing Date for the Borrower and its Subsidiaries after giving effect to the transactions contemplated hereby and (iv) projected financial statements (including balance sheets and statements of operations and cash flows) of the Borrower and its Subsidiaries for the eight year period after the Closing Date after giving effect to the transactions contemplated hereby, all prepared and otherwise consistent with the Borrower's historical financial statements, together with appropriate supporting details and a statement of underlying assumptions;
(s) Receipt of evidence in form and substance satisfactory to the Agents and the Arranger that any contract management agreement between KMSI and the Borrower or any of its Subsidiaries has been terminated and all Representation Agreements held by KMSI shall have been validly assigned to the Borrower or its Restricted Subsidiaries;
(t) Receipt of evidence that the fees and expenses incurred in connection with the Debenture Tender Offer and the related financings contemplated hereby will not exceed $6.0 million in the aggregate;
(u) A certificate executed by the chief financial officer of the Borrower stating that the Borrower will proceed to consummate the Merger immediately upon the making of the Loans;
(v) A certificate executed by the chief financial officer of the Borrower setting forth the Total Debt to EBITDA Ratio (and its computation) as of the last day of the most recently ended Fiscal Quarter; provided that Total -------- Debt shall be determined as of the Closing Date and EBITDA shall be determined as of such last day of the most recently ended Fiscal Quarter; and
(cw) the Administrative Agent shall have received evidenceSuch additional documents, satisfactory to the Administrative Agentinformation and materials as any Lender, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and through the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datemay reasonably request.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations obligation of each Lender and each LC Issuing Bank to make its initial Extension of Credit hereunder on the Borrower hereunder) shall become effective if, on or before April 15, 2011, all Restatement Effective Date is subject to satisfaction of each the following conditions precedent have been satisfiedon or before such date:
(a) the The Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentson or before the Restatement Effective Date, each dated a such date reasonably satisfactory to (except for the Administrative Agent and otherwise Disclosure Documents), in form and substance satisfactory to the Administrative AgentAgent and (except for the notes described in paragraph (i)) with one copy for each Lender and each LC Issuing Bank:
(i) (A) This Agreement, duly executed by each of the parties hereto, and (B) a promissory note payable to each Lender that requests one pursuant to Section 2.17, duly completed and executed by the Borrower;
(ii) Certified copies of the resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement Agreement, and of all documents evidencing other necessary organizational corporate action of the Borrower with respect to this Agreement and the documents contemplated herebyAgreement;
(iiiii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case as in effect on such datethe Restatement Effective Date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals (if any) required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated herebyAgreement;
(iiiiv) A certificate signed Copies of all the Disclosure Documents (it being agreed that such Disclosure Documents will be deemed to have been delivered under this clause (iv) if such documents are publicly available on ▇▇▇▇▇ or on the Borrower’s website no later than the third Business Day immediately preceding the Restatement Effective Date);
(v) One or more favorable opinions of counsel (including the opinion of in-house counsel and special New York counsel) for the Borrower in form and substance satisfactory to the Administrative Agent;
(vi) All documentation and information required by either regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the chief financial officerPatriot Act, principal accounting officer to the extent such documentation or treasurer information is requested by the Administrative Agent on behalf of the Lenders prior to the Restatement Effective Date; and
(vii) At least five (5) days prior to the Restatement Effective Date, if the Borrower stating that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower must deliver a Beneficial Ownership Certification in relation to Borrower.
(Ab) The Administrative Agent shall have received on behalf of each Departing Lender, payment in full of all “Advances” (as defined in the Existing Credit Agreement) of such Departing Lender outstanding as of the Restatement Effective Date, together with all interest accrued and unpaid thereon, any amounts owing in respect of such payment pursuant to Section 8.04(b) of the Existing Credit Agreement, all accrued and unpaid fees pursuant to Section 2.04 of the Existing Credit Agreement, and any other amounts then due and owing by the Borrower to such Departing Lender pursuant to the Existing Credit Agreement on the Restatement Effective Date.
(c) The Borrower shall have paid to the Lenders all accrued and unpaid fees pursuant to Section 2.04 of the Existing Credit Agreement, and any other amounts then due and owing by the Borrower to the Lenders pursuant to the Existing Credit Agreement (other than the Advances and participation amounts that, pursuant to Section 8.18, are being reallocated and/or continuing to remain outstanding under this Agreement).
(d) The Administrative Agent shall have received the fees payable pursuant to the Fee Letters.
(e) The following statements shall be true:
(i) The representations and warranties contained in Section 4.01 are true and correct on and as of Restatement Effective Date; and
(ii) No event has occurred and is continuing, or would result from the date of such certificate as though made on Borrower entering into the Agreement and as of such date and (B) no the other Loan Documents, that constitutes an Event of Default or Unmatured would constitute an Event of Default has occurred and is continuing on the date with notice or lapse of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (time or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Dateboth.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments Second Amendment shall become effective as of the first date (the “Second Amendment Effective Date”) when the conditions set forth in this Section 8 shall have been satisfied (or waived by the 2021 Incremental Revolving Lenders and the obligations of 2021 Refinancing Revolving Lenders) in accordance with the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfiedCredit Agreement:
(a) the The Administrative Agent shall have received evidencethe following, in each case in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with 2021 Incremental Revolving Lenders and the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent2021 Refinancing Revolving Lenders:
(i) Certified copies counterparts of resolutions of this Second Amendment executed by the Board of Directors or equivalent managing body of Borrower, the Borrower approving Guarantors, the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of Administrative Agent, each Issuing Bank, the Borrower with respect to this Agreement Swing Line Lender, the 2021 Incremental Revolving Lenders and the documents contemplated hereby2021 Refinancing Revolving Lenders;
(ii) A certificate a customary opinion from each of the Secretary or an Assistant Secretary of Borrower certifying (A) the names ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, with respect to matters of New York, Delaware and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date California law and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLP, counsel with respect to matters of Arizona law;
(iii) a certificate attesting to the Solvency of the Borrower and its Subsidiaries, on a consolidated basis, from the chief financial officer (or officer with equivalent duties) of the Borrower (after giving effect to the making of the 2021 Incremental Revolving Commitments and the 2021 Refinancing Revolving Commitments), substantially in the form of the Solvency certificate furnished on the Closing Date; and
(iv) the following:
i. a customary certificate of a Responsible Officer of each Loan Party dated the Second Amendment Effective Date and certifying (A) that either (x) attached thereto is a copy of the Organization Documents of each Loan Party or (y) certifying that there has been no change to such Organization Documents since last delivered to the Administrative Agent, (B) that attached thereto is a true and complete copy of resolutions or other action authorizing the execution, delivery and performance of this Second Amendment and any other document delivered in connection herewith, (C) to the extent not previously delivered to the Administrative Agent (and unchanged since such delivery), as to the incumbency of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party and (D) good standing certificates for each Loan Party from such Loan Party’s jurisdiction of formation or organization; and
ii. a customary certificate of another Responsible Officer as to the Borrowerincumbency and signature of the secretary or assistant secretary executing the certificate delivered pursuant to clause (i) above;
(b) The representations and warranties in Section 7 hereof shall be true and correct as of the Second Amendment Effective Date, and the Administrative Agent shall have received a certificate, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, the 2021 Incremental Revolving Lenders and the 2021 Refinancing Revolving Lenders, dated as of the Second Amendment Effective Date and signed by a Responsible Officer of the Borrower, certifying the foregoing;
(c) The Administrative Agent shall have been paid all fees and expenses (including all reasonable out-of-pocket costs, fees and expenses (including legal fees and expenses)) owing to it pursuant to the terms of the Credit Agreement (as amended hereby); and
(d) The Lenders shall have received, at least three Business Days prior to the Second Amendment Effective Date, (i) all documentation and other information about the Borrower and the other Loan Parties required by bank regulatory authorities in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a customary FinCEN beneficial ownership certificate as required by the Beneficial Ownership Regulation with respect to the Borrower (or, to the extent that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, previously provided such certificate to the extent billed2021 Incremental Revolving Lenders or the 2021 Refinancing Revolving Lenders, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable confirmation in writing to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify that no change to its beneficial ownership has occurred since the Borrowerdate of such previously provided certificate), the Lenders and the LC Issuers as that, in each case, has been requested in writing at least ten Business Days prior to the Second Amendment Effective Date.
Appears in 1 contract
Sources: First Lien Credit Agreement (Mister Car Wash, Inc.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Amendment shall become effective if, on or before April 15, 2011, all the date on which each of the following conditions precedent have been satisfied:is satisfied (the "EFFECTIVE DATE"):
(a) the The Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable counterparts hereof duly executed and delivered by the Borrower under Company, the Existing Credit Facility Borrower, the Guarantors and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedRequisite Lenders;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement certificate, dated the Effective Date and signed on behalf of each party hereto by the President, a Vice President or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each Financial Officer of the following documentsCompany, each dated a date reasonably confirming compliance as of September 30, 2002 of the financial covenants set forth in Section 6.6 of the Credit Agreement (without giving effect to the amendments thereto made pursuant to this Amendment), which shall be satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyLenders;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidenceresolutions or minutes of the board of directors or similar governing body of each Credit Party approving and authorizing the execution, satisfactory delivery and performance of this Amendment;
(d) the Administrative Agent shall have received all fees and other amounts due and payable in accordance with Section 10.2 of the Credit Agreement on or prior to the Effective Date;
(e) the Borrower shall have deposited an additional amount of $250,000, for an aggregate amount $500,000, in a collateral account with the Administrative Agent to be used as a retainer to pay, in accordance with Section 10.2 of the Credit Agreement, the reasonable fees, charges and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and FTI Consulting, Inc. and the Borrower shall have executed and delivered to the Administrative Agent an agreement pursuant to which the Borrower shall be obligated to maintain the balance in such account equal to (i) at least $500,000 at all times through the date a Permanent Amendment is effective and (ii) at least $250,000 thereafter;
(f) the Company shall have contributed all cash held by the Company to the Borrower and the Borrower shall have complied with Section 5.14 of the Credit Agreement as amended hereby;
(g) the Borrower shall have paid to the Administrative Agent, that for the Borrower has paid (or will pay with the proceeds account of the initial Credit ExtensionsLenders (other than any Defaulting Lender) all fees andthat are parties to this Amendment, to in immediately available funds, for the extent billed, expenses payable by the Borrower hereunder on the Effective Date account of each Lender (other than any Defaulting Lender) that has delivered (including amounts then payable by telecopy) an executed counterpart of this Amendment to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify or its counsel prior to 5:00 p.m., New York time, on November 27, 2002, an amendment fee equal to 0.25% of the Borroweraggregate amount of such Lender's unused Commitments, Revolving Loan Exposure and outstanding Term Loans on the date of this Amendment. If a Lender delivers a counterpart after November 27, 2002 but before 5:00 p.m., New York time, on December 2, 2002 and the Company determines in good faith that such delay was due to valid administrative reasons, then the Company may, at its option, pay to the Administrative Agent, for the account of such lender, the Lenders fee set forth in the previous sentence.
(h) Allegiance CPE, Inc. shall have merged with and into Shared Technologies Allegiance, Inc. and Shared Technologies Allegiance, Inc. shall have become a Subsidiary of the Company and complied with each of the requirements set forth in Section 5.10;
(i) the Borrower shall have made a voluntary prepayment of (i) Revolving Loans in an aggregate principal amount equal to the pro rata portion of the Paydown Amount and the LC Issuers as aggregate amount of the Revolving Loan Commitments shall have been automatically and permanently reduced by the amount of such prepayment and (ii) Delayed Draw Term Loans in an aggregate principal amount equal to the Effective Datepro rata portion of the Paydown Amount and the Delayed Draw Term Loan Commitments shall have been automatically and permanently reduced by the amount of such prepayment, and such voluntary prepayment shall have been accompanied by accrued interest on the amounts prepaid, and the Borrower shall have made payment of any amounts required to be paid pursuant to Section 2.16(c) of the Credit Agreement in connection with such prepayments. The Borrower shall have specified that the prepayments required hereby shall each be applied to reduce the Revolving Loan Installments and Delayed Draw Term Loan Installments due in 2004. The Requisite Lenders hereby waive any prior notice requirements set forth in Section 2.10(a). The Borrower shall not make any such voluntary prepayments to any Defaulting Lenders; and
(j) the Borrower shall declare in writing that those Lenders that did not fund on the Credit Date in June 2002 as "Defaulting Lender" under Section 2.20 of the Credit Agreement and direct that no voluntary or mandatory prepayment be made to them so long as they are Defaulting Lenders.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Allegiance Telecom Inc)
Conditions Precedent to Effectiveness. This Agreement (including The effectiveness of this Agreement, in addition to the Commitments conditions set forth in Section 3.2 hereof, subject to the fulfillment, to the satisfaction of the Lenders Agent and the obligations its counsel, of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all each of the following conditions precedent have been satisfiedon or before the Closing Date:
(a) the Administrative Agent Borrower shall have received evidence, executed and delivered to Agent the Disclosure Statement required under this Agreement. The form and content of the Disclosure Statement shall be satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received the Reaffirmation Agreement, duly executed and delivered by each party thereto;
(c) Agent shall have received the Amendment Number Five to Revolving Note and Cash Subordination Agreement & Revolving Note, in form and substance reasonably satisfactory to Agent, executed and delivered by all parties thereto and in full force and effect, together with evidence, satisfactory to Agent, that FINRA approval has been obtained with respect to the amendments to the Broker/Dealer Credit Facility as set forth therein;
(d) Agent shall have received a certificate executed by the Secretary of Borrower to the effect that: (i) Borrower and each of its Subsidiaries has each obtained all orders, consents, approvals, and other authorizations and having made all filings and other notifications (governmental or otherwise) required in connection with the Loan Documents, other than orders, consents, approvals, authorizations, or filings the failure to obtain or file, as applicable, which could not reasonably be expected to have a Material Adverse Effect on Borrower or any of its Subsidiaries, (ii) the Governing Documents of Borrower that were provided to CNB on October 11, 2012 have not been amended since they were last provided to CNB on such date, and are in full force and effect as of the date hereof, (iii) the signature and incumbency certificate of the Responsible Officers of Borrower attached thereto as an exhibit and last provided to CNB on October 11, 2012 is true and correct as of the date hereof, and (iv) attaching a copy of the resolutions of Borrower, certified as of the Closing Date, authorizing (A) the transactions contemplated by the Loan Documents to which Borrower is or will be a party, and (B) the execution, delivery and performance by Borrower of each Loan Document to which Borrower is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;
(e) Agent shall have received a certificate executed by the Secretary of Harvest to the effect that: (i) the Governing Documents of Harvest that were provided to CNB on October 11, 2012 have not been amended since they were last provided to CNB on such date, and are in full force and effect as of the date hereof, (ii) the signature and incumbency certificate of the Responsible Officers of Harvest attached thereto as an exhibit and last provided to CNB on October 11, 2012 is true and correct as of the date hereof, and (iii) attaching a copy of the resolutions of Harvest, certified as of the Closing Date, authorizing (A) the transactions contemplated by the Loan Documents to which Harvest is or will be a party, and (B) the execution, delivery and performance by Harvest of each Loan Document to which Harvest is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;
(f) Agent shall have received a certificate executed by the Secretary of JMP Securities to the effect that: (i) the Governing Documents of JMP Securities that were provided to CNB on October 11, 2012 have not been amended since they were last provided to CNB on such date, and are in full force and effect as of the date hereof, (ii) the signature and incumbency certificate of the Responsible Officers of JMP Securities attached thereto as an exhibit and last provided to CNB on October 11, 2012 is true and correct as of the date hereof, and (iii) attaching a copy of the resolutions of JMP Securities, certified as of the Closing Date, authorizing (A) the transactions contemplated by the Loan Documents to which JMP Securities is or will be a party, and (B) the execution, delivery and performance by JMP Securities of each Loan Document to which JMP Securities is or will be a party and the execution and delivery of the other documents to be delivered by such Person in connection herewith and therewith;
(g) Agent shall have received full payment of all fees set forth in the Fee Letter that are required to be paid on the Closing Date;
(h) Agent shall have received form FR U-1, with Part I fully completed and executed by Borrower;
(i) no litigation, inquiry, other action or proceeding (governmental or otherwise), or injunction or other restraining order shall be pending or overtly threatened that could have, in the reasonable opinion of Agent: (i) a counterpart of this Agreement signed material adverse effect on behalf of each party hereto Borrower’s or any Guarantor’s ability to repay the Loans or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:Material Adverse Effect on Borrower or any Guarantor; and
(ij) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered or executed or recorded and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to shall be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers Agent and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Dateits counsel.
Appears in 1 contract
Sources: Credit Agreement (JMP Group LLC)
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement is subject to the conditions precedent that the Administrator shall have received on or before the Closing Date the following, each in form and substance (including the Commitments of date thereof) satisfactory to the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfiedAdministrator:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds A counterpart of the initial Credit Extensions) all amounts then payable Agreement and the other Transaction Documents executed by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;parties thereto.
(b) the Administrative Agent shall have received Certified copies of: (i) a counterpart of this all documents evidencing necessary governmental approvals, if any, with respect to the Agreement signed on behalf of each party hereto or and the other Transaction Documents and (ii) written evidence (which may include electronic transmission the applicable organizational documents of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement the Seller, the Servicer and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:Originator.
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(iic) A certificate of the Secretary or an Assistant Secretary of Borrower the Seller, the Servicer and each Originator certifying (A) the names and true signatures of the its officers of the Borrower who are authorized to sign this the Agreement and the other documents Transaction Documents. Until the Administrator receives a subsequent incumbency certificate from the Seller, the Servicer and each Originator, as the case may be, the Administrator shall be entitled to be rely on the last such certificate delivered hereunder; to it by the Seller, the Servicer, and each Originator, as the case may be.
(Bd) Evidence that attached thereto are true and correct copies of the organizational documents of proper financing statements, under the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies UCC of all governmental relevant jurisdictions necessary or desirable in order to perfect the interests of Eagle Materials, the Seller and regulatory authorizations and approvals required for the due execution, delivery and performance Issuer contemplated by the Borrower of this Agreement, the Purchase and Sale Agreement and the documents contemplated hereby;Sale and Contribution Agreement, as the case may be, have been duly filed in each such jurisdiction.
(iiie) A certificate signed by either the chief financial officerCompleted UCC search reports, principal accounting officer dated on or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of shortly before the date of such certificate the initial purchase hereunder, listing the financing statements filed in all applicable jurisdictions that name any Originator, Eagle Materials or the Seller as though made on and as debtor, together with copies of such date other financing statements, and (B) no Event of Default or Unmatured Event of Default has occurred similar search reports with respect to judgment liens, federal tax liens and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds liens of the initial Credit Extensions) all fees andPension Benefit Guaranty Corporation in such jurisdictions, to as the extent billedAdministrator may request, expenses payable by the Borrower hereunder showing no Adverse Claims on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Dateany Pool Assets.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Eagle Materials Inc)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments shall become effective on and as of the Lenders first date (the "Effective Date") on which the Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the Banks and the obligations of the Borrower hereunderfollowing additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective if, as of the first date on or before April 15, 2011, which the Agent shall have received counterparts of this Agreement duly executed by the Borrower and all of the following conditions precedent have been satisfiedBanks:
(a) The Borrower shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(b) The Chapter 11 Cases shall have been filed.
(c) Each of the Agent, the Syndication Agent and the Documentation Agent shall be reasonably satisfied in all material respects with (i) the structure of the Plan of Reorganization and the other aspects of the Transaction (excluding the terms of the settlement contemplated thereby and the amount of the Settlement Payments to the extent, in each case, such terms and amount are not materially different from those set forth in the June 2003 10-Q) and all related tax, legal and accounting matters, (ii) the capitalization, corporate or organizational, and legal structure and equity ownership of the Borrower and its material Subsidiaries (including, without limitation, the charters and bylaws of each of the Borrower and its material Subsidiaries and each agreement or instrument relating thereto) after giving effect to the Transaction and (iii) the projected financial condition of the Borrower and its subsidiaries on a consolidated basis following the consummation of the Plan of Reorganization.
(d) Each of the Agent, the Syndication Agent and the Documentation Agent shall be reasonably satisfied that there has been no material adverse change since August 18, 2003 (which shall not be deemed to refer to the contemplated restructurings disclosed to the Co-Lead Arrangers prior to such date) in either (i) the corporate and legal structure and capitalization of the Borrower and its material Subsidiaries, including, without limitation, the charters and bylaws of each of the Borrower and each of its material Subsidiaries and each agreement or instrument relating thereto or (ii) the projected financial condition of the Borrower and its Subsidiaries on a consolidated basis following the Order Entry.
(e) The Agent shall have received evidence, satisfactory to on or before the Administrative Agent, that Effective Date the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day, in form and substance reasonably satisfactory to the Administrative Agent and otherwise (except for the Notes) in form and substance satisfactory to the Administrative Agentsufficient copies for each Bank:
(i) The Notes to the order of the Banks to the extent requested by any Bank pursuant to Section 2.18.
(ii) A share pledge agreement in substantially the form of Exhibit F hereto (together with each other pledge agreement and pledge agreement supplement delivered pursuant to Section 5.01(i), in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and HESI in favor of the Collateral Agent, together with:
(A) to the extent such Pledged Equity is certificated, certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank;
(B) financing statements in proper form for filing under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement;
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, 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; and
(D) except for the filing of financing statements to occur after the Effective Date and except as otherwise permitted by the Loan Documents, evidence that all other action that the Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement has been taken.
(iii) A subsidiary guaranty in substantially the form of Exhibit G hereto (together with each other subsidiary guaranty and subsidiary agreement supplement delivered by a Subsidiary Guarantor pursuant to Section 5.01(i), in each case as amended, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor in favor of the Agent, the Banks, the LC Agent and the ▇▇ ▇▇▇▇▇.
(iv) A collateral trust agreement in substantially the form of Exhibit H hereto (together with each other collateral trust agreement supplement delivered by a Loan Party pursuant to Section 5.01(i), in each case as amended, the "Collateral Trust Agreement"), duly executed by the Borrower, HESI and the Collateral Agent.
(v) Certified copies of the resolutions of the Board of Directors Directors, members or equivalent managing body partners of the Borrower each Loan Party approving the transactions contemplated by this Agreement each Loan Document to which such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate or organizational action of the Borrower and governmental approvals, if any, with respect to this Agreement and the documents contemplated hereby;each Loan Document to which such Loan Party is or is to be a party.
(iivi) A certificate of the Secretary or an Assistant Secretary of Borrower each Loan Party certifying (A) the names and true signatures of the officers of the Borrower such Loan Party authorized to sign this Agreement each Loan Document to which such Loan Party is or is to be a party and the other documents to be delivered by such Loan Party hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iiivii) A certificate signed by either the chief financial officer, principal accounting of an officer or treasurer of the Borrower stating the respective ratings by each of S&P and ▇▇▇▇▇'▇, respectively, of the senior unsecured long-term debt of the Borrower as in effect on the Effective Date.
(viii) A letter addressed to the Agent from the Borrower with respect to the Prior Credit Facility stating that (Ai) all the representations and warranties contained "Commitments" (as defined in Section 4.01 are correct on and as the Prior Credit Facility) of the date of such certificate "Banks" (as though made on and defined in the Prior Credit Facility) have been terminated, (ii) no "Advances" (as of such date defined in the Prior Credit Facility) are outstanding under the Prior Credit Facility, and (Biii) no Event of Default or Unmatured Event of Default has occurred all fees and is continuing on other amounts known by the date of such certificate; andBorrower to be payable under the Prior Credit Facility have been paid in full.
(ivix) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Assistant Secretary and Assistant General Counsel for the Borrower, in substantially the form of Exhibit C-1 hereto.
(x) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the BorrowerLoan Parties, in substantially the form of Exhibit C-2 hereto.
(xi) A solvency opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Zukin in form and substance satisfactory to the Agent, the Syndication Agent and the Documentation Agent.
(xii) A favorable opinion of Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Agent.
(f) Each of the Agent, the Syndication Agent and the Documentation Agent shall be satisfied that the investigation of the Borrower by the Securities and Exchange Commission has been concluded or will be concluded without (i) giving rise to a Material Adverse Effect, including, without limitation, the obligation to restate prior reported earnings or (ii) adversely affecting the Borrower's ability to access the capital markets in the reasonable judgment of any of the Agent, the Syndication Agent or the Documentation Agent.
(g) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to have a Material Adverse Effect other than the Disclosed Litigation or (ii) purports to affect the legality, validity or enforceability of the Borrower's or any Subsidiary Guarantor's obligations or the rights and remedies of the Banks relating to the Agreement and the other Loan Documents, and except as set forth in Schedule 4.01(f) to this Agreement, there shall have been no material adverse change in the status, or financial effect on the Borrower and its subsidiaries on a consolidated basis, of the Disclosed Litigation from that described to the Agent prior to August 18, 2003.
(h) There shall have occurred no material adverse change (which term shall not be deemed to refer to the commencement of the Chapter 11 Cases) in the business, condition (financial or otherwise), operations, performance or properties of the Borrower and its subsidiaries, on a consolidated basis, since December 31, 2002, except as disclosed in the June 2003 10-Q and except for the accounting charges to be taken by the Borrower directly in connection with the Settlement Payments and except as set forth in Schedule 4.01(f) to this Agreement, and the Agent shall have received a certificate signed by a Responsible Officer of the Borrower stating that the condition in this Section 3.01(h) has been satisfied as of the Effective Date.
(i) Each of the Agent, the Syndication Agent and the Documentation Agent shall be satisfied that the Borrower and its subsidiaries are not subject to material contractual or other restrictions that would be violated by the Transaction, including the incurrence of indebtedness under this Agreement, the Master LC Facility Agreement and the Senior Unsecured Credit Facility Agreement, the granting of guarantees and collateral and the payment of dividends by subsidiaries.
(j) Consent solicitations or tender or exchange offers with respect to the event of default arising from the filing of the Chapter 11 Cases under the Hundred Year Notes Indenture shall have been successfully completed, and the result shall be that the covenants in the Hundred Year Notes Indenture are replaced with covenants no more restrictive than those in the Convertible Notes Indenture.
(k) The Master LC Facility Agreement shall have become effective or substantially simultaneously with the Effective Date shall become effective.
(l) The Senior Unsecured Credit Facility Agreement shall have been executed and delivered.
(m) Except as otherwise permitted by the Loan Documents, 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 reasonably acceptable to the Administrative Agent; and, the Syndication Agent and the Documentation Agent) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Agent, the Syndication Agent and the Documentation Agent that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(cn) On the Administrative Effective Date, the following statements shall be true and the Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds a certificate signed by a duly authorized officer of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to 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,
(ii) No event has occurred and is continuing that constitutes a Default,
(iii) Any default under the Borrower's or any of its material Subsidiaries' material debt instruments that would be triggered by the filing of the Chapter 11 Cases and related transactions has been permanently waived or amended,
(iv) The Borrower has disclosed to the Agents (A) all material potential cash collateral and/or reimbursement obligations under letters of credit and (B) all material potential liabilities with respect to sureties, in each case, existing prior to the date hereof, that might arise as a result of the filing of the Chapter 11 Cases and related transactions, and
(v) To the Borrower's knowledge, the Borrower will not be required for any reason to cause its consolidated financial statements for fiscal year 2001 or 2002 to be reaudited or restated after the Effective Date, except in order to reflect changes in the Borrower's segment reporting.
(o) The Barracuda Facility shall have been amended such that the maximum "Leverage Ratio" (as such term is defined in the Barracuda Facility) permitted thereunder is 0.55:1.00 or a higher ratio.
(p) All accrued fees and reasonable out-of-pocket expenses of the Co-Lead Arrangers (including the reasonable fees and expenses of counsel to the Co-Lead Arrangers for which invoices have been submitted) shall have been paid.
(q) The Borrower shall have paid all accrued fees and reasonable out-of-pocket expenses of the Agent (including reasonable fees and expenses of counsel for which invoices have been submitted).
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all upon satisfaction of the following conditions precedent have been satisfied:(such date, the “First Amendment Effective Date”):
(a) the Administrative Agent shall have received evidenceexecution and delivery of signature pages to this Agreement from (i) the Borrower, satisfactory the Holding Company and each other Obligor that is party to the Loan Documents, (ii) the Lenders constituting Required Lenders and (iii) the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) no Default or Event of Default shall have occurred and be continuing or shall result from the transactions contemplated by this Agreement;
(c) receipt by the Administrative Agent shall have received of (i) a counterpart such documents, certificates and other instruments as the Administrative Agent or its counsel may reasonably request relating to (x) the organization, existence and good standing of this Agreement signed on behalf the Obligors, (y) the incumbency of the officers of each party hereto or Obligor and (iiz) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart the authorization of this Agreement and each of the following documentstransactions contemplated hereby and any other legal matters relating to the Obligors, each dated a date this Agreement, the other Loan Documents and the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and otherwise (ii) a certificate, signed by the President, Vice President, a Financial Officer or Secretary of the Borrower and by the President, Vice President, a Financial Officer, Secretary, Managing Member or Sole Member of each other Obligor, as of the First Amendment Effective Date, which shall (x) confirm the satisfaction of the conditions in clause (b) above and Section 4 hereof and (y) certify that no Default or Event of Default shall have occurred or be continuing;
(d) receipt by the Administrative Agent (or its affiliates) of all reasonable fees and expenses, including reasonable fees and expenses of counsel to the Administrative Agent, required to be paid or reimbursed by the Borrower in connection with the preparation, execution and delivery of this Agreement (and, in the case of any such expenses, for which invoices in reasonable detail shall have been presented to the Borrower prior to the First Amendment Effective Date); and
(e) receipt by the Administrative Agent of the legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., counsel for the Obligors, in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all upon satisfaction of the following conditions precedent have been satisfiedprecedent:
(a) the Administrative Agent shall have received evidence, satisfactory to the The Administrative Agent's receipt of the following, that 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 has paid (or will pay with and, in the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page case of this Agreement) that , each party hereto has signed a counterpart of this Agreement and each of the following documentsLender), each dated the Execution Date (or, in the case of certificates of governmental officials, a recent date before the Execution Date) and each in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to each of the Administrative AgentLenders:
(i) Certified copies executed counterparts of resolutions of this Agreement, sufficient in number for distribution to the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement Administrative Agent, each Lender and the documents contemplated herebyBorrower;
(ii) A certificate a Note executed by the Borrower in favor of the Secretary each Lender requesting a Note;
(iii) such certificates of resolutions or an Assistant Secretary other action, incumbency certificates and/or other certificates of Borrower certifying (A) the names and true signatures of the officers Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to sign act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to be delivered hereunder; 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 jurisdiction of its organization;
(Bv) that attached thereto are true and correct copies a favorable opinion of the organizational documents of Ropes & ▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth in each case in effect on Exhibit F and such date; other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(Cvi) that attached thereto are true and correct a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all governmental and regulatory authorizations material consents, licenses and approvals required for in connection with the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated herebyvalidity against the Borrower of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(iiivii) A a certificate signed by either the chief financial officer, principal accounting officer or treasurer a Responsible Officer of the Borrower stating that certifying (A) (i) no Default or Event of Default exists as of the Execution Date and (ii) the representations and warranties contained in Section 4.01 Article V or any other Loan Document, or which are contained in any document furnished in connection herewith or therewith, are true and correct in all material respects on and as of the date of Execution Date except to the extent that such certificate as though made on representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such date and earlier date, (B) that there has been no Event of Default event or Unmatured Event of Default has occurred and is continuing on circumstance since the date of such certificatethe Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings; and
(ivviii) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLPsuch other certificates and documents, counsel for the Borrower, in form and substance reasonably acceptable to consents or opinions as the Administrative Agent; andAgent reasonably may require, as set forth in the list of closing documents set forth in Exhibit H.
(b) Any fees required to be paid on or before the Execution Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Execution Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received evidence, satisfactory notice from such Lender prior to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective proposed Execution Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datespecifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Biogen Idec Inc.)
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all is subject to satisfaction of the following conditions precedent have been satisfiedprecedent:
(a) The Administrative Agent’s receipt of the Administrative Agent following, each of which shall have received evidencebe originals or e-mails (in a .pdf format) or telecopies (in each case, satisfactory followed promptly by originals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, that the Borrower has paid (or will pay with the proceeds each properly executed by a Responsible Officer of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsparties thereto, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date reasonably satisfactory to before the Administrative Agent Effective Date) and otherwise each in form and substance satisfactory to the Administrative Agent:
(i) Certified executed counterparts of (A) this Agreement, in such number as requested by Administrative Agent and (B) the Revolving Loan Notes payable by the Company and any Designated Borrower to each Lender requesting a Revolving Loan Note;
(ii) certified copies of (x) the charter and by-laws of the Company, (y) the resolutions of the Board of Directors or equivalent managing body of the Borrower Company authorizing and approving this Agreement and the other Loan Documents and the transactions contemplated by this Agreement the Loan Documents, and of (z) all documents evidencing other necessary organizational corporate action of the Borrower and governmental approvals, if any, with respect to this Agreement and the documents contemplated herebyLoan Documents;
(iiiii) A certificate such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Secretary or an Assistant Secretary Company as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of Borrower certifying (A) the names and true signatures of the officers of the Borrower each Responsible Officer authorized to sign act in connection with this Agreement and the other documents Loan Documents to be delivered hereunderwhich the Company is a party; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; andFOURTH AMENDED AND RESTATED CREDIT AGREEMENT
(iv) A a favorable opinion of the Company’s Law Department covering such matters concerning the Borrowers and the Loan Documents as any Lender, through the Administrative Agent, may reasonably request;
(v) a favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the BorrowerCompany, in form covering such matters concerning the Borrowers and substance reasonably acceptable to the Loan Documents as any Lender, through the Administrative Agent, may reasonably request; and
(vi) a certificate of a Responsible Officer of the Company to the effect that (x) the representations and warranties contained in Section 5.01 are correct (other than any such representations or warranties which, by their terms, refer to a prior date) and (y) no event has occurred and is continuing which constitutes a Default.
(b) Confirmation that the Company has delivered a written notice to each Departing Lender terminating as of the Effective Date all commitments of the Departing Lenders under the Existing Credit Agreement, and all amounts owing (whether or not due) under the Existing Credit Agreement and related documents through and including the Effective Date to each Departing Lender shall have been paid in full.
(c) Confirmation that (1) the Company has paid all accrued fees and expenses of the Administrative Agent shall have received evidence, satisfactory and the Lenders hereunder (including the fees and expenses of counsel to the Administrative AgentAgent to the extent then payable), that together with all accrued but unpaid fees and expenses under the Borrower has paid (or will pay with the proceeds of the initial Existing Credit Extensions) all fees andAgreement, to the extent billedthe same have been invoiced to the Company at least two (2) Business Days prior to the Effective Date, expenses payable by and (2) the Borrower hereunder Company has paid in full the accrued and unpaid interest on the Effective Date Loans as defined in, and all other amounts whatsoever payable under, the Existing Credit Agreement.
(including amounts then payable to the Joint Active Lead Arrangers d) The Administrative Agent and the Agents). Promptly upon the occurrence thereof, each Lender shall have received all documentation and other information that the Administrative Agent shall notify or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the BorrowerUSA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), in each case to the Lenders and the LC Issuers as extent requested at least five Business Days prior to the Effective Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including The obligation of each Lender to make the Commitments initial Extension of the Lenders and the obligations of the Borrower hereunder) Credit to be made by it hereunder shall become effective if, on or before April 15, 2011, all and as of the first date on which the following conditions precedent have been satisfied:
(a) the The Administrative Agent shall have received evidence, satisfactory to on or before such date of effectiveness the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day (except as noted otherwise below), in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory and, to the extent requested by the Administrative Agent, in sufficient copies (except with respect to the promissory notes described in paragraph (ii) below) for each Lender:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(A) A copy of the articles of incorporation or other organizational documents of the Borrower and each amendment thereto, certified by the Secretary of State of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the Board board of Directors or equivalent managing body directors of the Borrower approving the transactions contemplated by this Agreement and the other Loan Documents and of all documents evidencing other necessary organizational corporate action of and Governmental Approvals required for the execution, delivery and performance by the Borrower with respect to of this Agreement and the documents contemplated hereby;other Loan Documents.
(iiv) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder; , and (B) that attached thereto are true and correct copies of the organizational documents bylaws of the Borrower, in each case Borrower as in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;.
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(ivvi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, in-house counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and.
(cvii) A favorable opinion of special New York counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent shall have received evidencefor the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this Agreement are true and correct on and as of the date of such effectiveness as though made on and as of such date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Existing Credit Agreement shall be repaid in full, all commitments (if any) in respect thereof shall have been terminated and the Administrative Agent shall have received pay-off letter in form and substance satisfactory to it evidencing such repayment and termination.
(d) The Borrower shall have paid all accrued fees and expenses under the Existing Credit Agreement payable on the date hereof and all accrued fees and expenses of the Administrative Agent, that the Borrower has paid Joint Lead Arrangers and the Lenders payable on the date hereof (or will pay with including the proceeds accrued fees and expenses of counsel to the initial Credit ExtensionsAdministrative Agent to the extent then due and payable).
(e) The Administrative Agent shall have received all fees anddocumentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, to the extent billed, expenses payable such documentation or information is requested by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, on behalf of the Lenders and reasonably in advance of the LC Issuers date hereof.
(f) [reserved].
(g) The Administrative Agent shall have received such other approvals or documents as to the Effective DateAdministrative Agent, any Lender shall have reasonably requested through the Administrative Agent reasonably in advance of the date hereof.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:.
(a) the Administrative The Agent shall have received evidence, satisfactory to on or before the Administrative Agent, that Effective Date the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date such day, in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions counterparts hereof signed by each of the Board parties hereto (or, in the case of Directors any party as to which an executed counterpart shall not have been received, receipt by the Agent of telegraphic, telecopy, electronic communication or equivalent managing body other written confirmation from such party of the Borrower approving the transactions contemplated execution of a counterpart hereof by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebysuch party);
(ii) A the Revolving Advance Notes payable to the Lenders, respectively, requesting same;
(iii) (A) an opinion of the General Counsel of the Borrower and Parent, and (B) an opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special counsel for the Borrower and Parent, each in a customary form reasonably satisfactory to the Agent;
(iv) certified copies of the resolutions of (x) the Board of Managers of the Borrower approving this Agreement and the Notes and (y) the Board of Directors of Parent approving this Agreement;
(v) a certificate signed by the Chief Financial Officer or the Treasurer of the Borrower, dated the Effective Date, to the effects set forth in clauses (a) and (b) of Section 3.02;
(vi) a certificate of the Secretary or an Assistant Secretary of each of the Borrower and Parent certifying (A) the names and true signatures of the officers of the Borrower and Parent authorized to sign this Agreement and the Notes, as applicable, and the other documents to be delivered hereunder; and
(Bvii) that attached thereto are true all organizational documents and correct copies public officials’ certifications in respect of the organizational documents of Borrower and the BorrowerParent that the Agent may have reasonably requested prior to the date hereof.
(b) The Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable to them on or prior to the Effective Date, in each case in effect on such date; and (C) that attached thereto are true and correct copies for which invoices have been presented to the Borrower at least two Business Days’ prior to the date hereof, including reimbursement or payment of all governmental reasonable and regulatory authorizations invoiced out-of-pocket fees, charges and approvals expenses of a single counsel and of a single local counsel to the Agent and the Joint Lead Arrangers in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and such other counsel retained with the Borrower’s prior written consent (such consent not to be unreasonably withheld or delayed), required for the due execution, delivery and performance to be reimbursed or paid by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; andhereunder.
(c) the Administrative Agent The Lenders shall have received evidencereceived, satisfactory at least two Business Days prior to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees anddate hereof, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable requested at least five Business Days prior to the Joint Active Lead Arrangers date hereof, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Agents)Patriot Act. Promptly upon the occurrence thereof, the Administrative The Agent shall notify the Borrower, Borrower and the Lenders and the LC Issuers as to of the Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including The initial Purchase Date hereunder is subject to the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all of the following conditions precedent have been satisfied:
(a) that the Collateral Agent, the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative each Purchaser Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and unless otherwise waived), each of the following documents, each dated a date in form and substance reasonably satisfactory to the Collateral Agent, the Administrative Agent and otherwise in form and substance satisfactory to the Administrative each Purchaser Agent:
: (ia) Certified copies of resolutions a copy of the Board of Directors resolutions or equivalent managing body unanimous written consents, as applicable, of the Borrower approving board of directors or managers or member (or any authorized sub-committee), as the transactions contemplated by this Agreement and case may be, of all documents evidencing other necessary organizational action each of the Borrower with respect ADT Entities required to this Agreement authorize the execution, delivery, and performance by such ADT Entity of each Transaction Document to be delivered by it hereunder, certified by its secretary or any other authorized person; (b) good standing certificates (or the documents contemplated hereby;
equivalent) for each of the ADT Entities issued by the Secretary of State (iior the equivalent) A of the jurisdiction in which each such entity is organized; (c) a certificate of the Secretary secretary or an Assistant Secretary assistant secretary of Borrower each of the ADT Entities certifying (A) the names and true signatures of the officers of the Borrower authorized on its behalf to sign this Agreement and the other documents Transaction Documents to be delivered hereunderby it (on which certificate the Collateral Agent, the Administrative Agent, each Purchaser and each Purchaser Agent may conclusively rely until such time as such party shall have received from any such ADT Entity, a revised certificate meeting the requirements of this clause (c)); (Bd) that attached thereto are true and correct copies of the organizational documents Constituent Documents of each of the BorrowerADT Entities duly certified by the secretary or an assistant secretary of each such ADT Entity, and in in the case of any certificates or articles of incorporation, formation or organization, certified by the Secretary of State (or the equivalent) of the jurisdiction in which each case such entity is organized; (e) a search report by a nationally recognized search firm provided in effect on such date; writing to the Collateral Agent and the Administrative Agent by the Servicer listing all financing 28 statements, state and federal tax, or ERISA liens and judgments that name the Seller or ADT, as debtor and that are filed in the jurisdictions in which filings were made pursuant to clause (Cf) and any other jurisdictions that attached thereto are true and correct the Collateral Agent or the Administrative Agent shall reasonably request together with copies of all governmental such financing statements; (f) copies of proper financing statements (form UCC-3) (including amendment and regulatory authorizations termination statements) and approvals required for release documentation each in form and substance reasonably satisfactory to the due execution, delivery and performance by the Borrower of this Agreement Collateral Agent and the documents contemplated hereby;
Administrative Agent with respect to any financing statement included in the search report described in clause (iiie) A certificate signed by either above, to the chief financial officerextent that any such financing statement set forth therein covers any Pool Receivables or Related Assets, principal accounting officer or treasurer other than financing statements filed pursuant to this Agreement; (g) proper financing statements naming the Seller as debtor, and the Collateral Agent as secured party, to be filed in all applicable jurisdictions in respect of the Borrower stating that Collateral; (Ah) the representations and warranties contained in Section 4.01 are correct on and as favorable opinions of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP (including with respect to creation and perfection of security interests under the applicable UCC) counsel to the ADT Entities; non-consolidation, counsel for and true sale matters; and other customary opinions required by the Borrower, in form Collateral Agent and substance reasonably acceptable to the Administrative Agent; and
(ci) completion of satisfactory due diligence in respect of the Administrative Agent shall have received evidenceReceivable Pool by Purchasers, satisfactory to Purchaser Agents, the Collateral Agent, and the Administrative Agent; (j) duly executed copies of each of the Fee Letters; (k) duly executed copies of the Transaction Documents, that including a Payment Direction in respect of each Lock-box Account, each Collection Account and the Borrower has Omnibus Account which shall each be in full force and effect, and completion of the form of each Exhibit to this Agreement not attached hereto as of the Closing Date together with an amendment hereto attaching such Exhibits; (l) payment by or on behalf of the Seller of each Purchaser’s, each Purchaser Agent’s, the Collateral Agent’s, and the Administrative Agent’s reasonable and documented out-of-pocket costs and expenses, including all reasonable and documented invoiced legal fees of counsel to such parties and all audit fees of Protiviti Inc. and all Fees required to be paid on the Closing Date under any Fee Letter; (or will pay m) a pro-forma Information Package, which shall evidence compliance with the proceeds terms of this Agreement, after giving credit to the initial Credit Extensionstransfer of an interest in Receivables under this Agreement; (n) all fees andentry into a mutually satisfactory agreement, together with an amendment to the extent billedthis Agreement to reflect such agreement, expenses payable by the in respect of applicable confidentiality and information protection requirements in respect of Non-Public Borrower hereunder on the Effective Date (Data, including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Date.29 SK 28677 0004 8494650 v1217
Appears in 1 contract
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) shall become effective ifupon, on or before April 15and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to, 2011, all the satisfaction of the following conditions precedent have been satisfiedprecedent:
(a) the Administrative Agent shall have received evidence, satisfactory to the The Administrative Agent’s receipt of the following, that 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 has paid (or will pay with and, in the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page case of this Agreement) that , each party hereto has signed a counterpart of this Agreement Lender, the Swing Line Lender and each of the following documentsL/C Issuer), if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to each of the Administrative AgentLenders:
(i) Certified copies executed counterparts of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated herebyAgreement;
(ii) A certificate a Note executed by the Borrower in favor of the Secretary each Lender requesting a Note;
(iii) such certificates of resolutions or an Assistant Secretary other action, incumbency certificates and/or other certificates of Borrower certifying (A) the names and true signatures of the officers Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to sign act as a Responsible Officer in connection with this Agreement and the other documents Loan Documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by which the Borrower of this Agreement and the documents contemplated herebyis a party;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A 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 jurisdiction of its organization;
(v) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for to the Borrower, in form and substance reasonably acceptable addressed to the Administrative AgentAgent and each Lender, as to such customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying: (A) that (i) no Default or Event of Default exists as of the Closing Date and (ii) the representations and warranties contained in Article V or any other Loan Document, or which are contained in any document furnished in connection herewith or therewith, are true and correct in all material respects on and as of the Closing Date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date (provided, that, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or other similar language shall be true and correct (after giving effect to any qualification therein) in all respects); (B) that there has been no event or circumstance since the date of the Audited Financial Statements through the Closing Date that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) as to the current Debt Ratings; and
(vii) such other certificates and documents, consents or opinions as the Administrative Agent reasonably may require, as set forth in the list of closing documents set forth in Exhibit G.
(b) The Administrative Agent and each Lender shall have received from the Borrower such documentation and other information reasonably requested in writing by the Administrative Agent or such Lender in order to comply with applicable law and “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five (5) days prior to the Closing Date. If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender shall have received, to the extent requested by such Lender, a Beneficial Ownership Certification in relation to the Borrower.
(c) All existing indebtedness under the Existing Credit Agreement shall be repaid in full, and all commitments in connection therewith shall be terminated.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received evidence, satisfactory notice from such Lender prior to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective proposed Closing Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Datespecifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Biogen Inc.)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments The effectiveness of the Lenders and Original Agreement as amended by this Amendment is conditioned upon the obligations of the Borrower hereunder) shall become effective if, on or before April 15, 2011, all fulfillment of the following conditions precedent have been satisfiedconditions:
(a) the Administrative Agent Completion shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower occurred under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminatedTPG SPA;
(b) the Administrative Agent each Party shall have received performed and complied with all covenants, agreements and undertakings contained in this Amendment that are required to be performed or complied with by that Party on or before the Effective Date;
(ic) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each FEEL shall have delivered to Standard Bank certified true copies of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board board of Directors or equivalent managing body directors of FEEL approving the terms of this Amendment and the Amended Option Agreement;
(d) the Company shall have delivered to Standard Bank certified true copies of the Borrower resolutions of the board of directors of the Company approving the transactions contemplated by terms of this Agreement and of all documents evidencing other necessary organizational action of Amendment, the Borrower with respect to this Amended Option Agreement and the documents contemplated herebyAmended and Restated Memorandum and Articles (the “Restated Articles”) a copy of which is attached hereto as Exhibit A) of the Company;
(iie) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and MIE shall have delivered to Standard Bank certified true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents resolutions of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies board of all governmental and regulatory authorizations and approvals required for directors of MIE approving the due execution, delivery and performance by the Borrower terms of this Agreement Amendment and the documents contemplated herebyAmended Option Agreement;
(iiif) A certificate signed by either each of FEEL and Standard Bank shall have executed and delivered to the chief financial officer, principal accounting officer or treasurer other party an amendment and restatement of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and Option Agreement dated as of January 9, 2009 by and between FEEL and Standard Bank (the date “Amended Option Agreement”) in the form attached hereto as Exhibit B;
(g) Standard Bank shall have executed and delivered to each of such certificate FEEL, TPG, MIE and the Company a shareholders agreement by and among TPG, Standard Bank, FEEL, MIE and the Company in the form attached hereto as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificateExhibit C; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(ch) the Administrative Agent FEEL Shareholders shall have received evidence, satisfactory executed and delivered to Standard Bank an undertakings letter in the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers form attached hereto as to the Effective Date.Exhibit D.
Appears in 1 contract
Conditions Precedent to Effectiveness. This The effectiveness of this Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Lenders to make the Loans and of the Issuing Lender to issue any Letter of Credit shall become effective if, on or before April 15, 2011, all be subject to the prior satisfaction of each of the following conditions precedent have been satisfiedconditions:
(a) the Administrative Agent Lenders shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documentsfollowing, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative AgentLenders and their counsel:
(i1) Certified copies This Agreement and the Notes, duly executed and delivered by the Borrower;
(2) Financing statements and other documents as any of the Lenders may deem reasonably necessary or proper to perfect the Security Interests in the Collateral;
(3) The Mortgage, duly executed and delivered by the Borrower;
(4) Fully paid mortgagee title insurance policies (or binding commitments to issue title insurance policies, marked to Agent's satisfaction to evidence the form of such policies to be delivered with respect to the Mortgage), in standard ALTA form, issued by a title insurance company satisfactory to Agent, each in an amount equal to not less than the fair market value of the Property insuring the Mortgage as creating a valid Lien on the Property with no exceptions which Agent shall not have approved in writing and no survey exceptions;
(5) The Guaranty duly executed and delivered by each of the Guarantors;
(6) The Guarantor Security Agreement duly executed and delivered by each of the Secured Guarantors, together with financing statements and other documents as any of the Lenders may deem reasonably necessary or proper to perfect the security interests granted thereby in the collateral covered thereby;
(7) Copies of all corporate action taken by the Borrower and each Guarantor, including resolutions of the their Board of Directors or equivalent managing body Directors, authorizing the execution, delivery, and performance of the Loan Documents to which each is a party and each other document to be delivered pursuant to this Agreement, certified as of the date of this Agreement by the Secretary of the Borrower approving or such Guarantor, as the transactions contemplated by case may be;
(8) A certificate, dated as of the date of this Agreement and Agreement, of all documents evidencing other necessary organizational action the Secretary of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower each Guarantor certifying (A) the names and true signatures of the officers of the Borrower or such Guarantor authorized to sign this Agreement the Loan Documents to which the Borrower or such Guarantor is a party and the other documents to be delivered hereunder; by the Borrower or such Guarantor under this Agreement;
(B9) that attached thereto are true A favorable opinion of independent counsel for the Borrower and correct copies the Guarantors, satisfactory to Lenders, dated the date of this Agreement;
(10) A letter duly executed by an actuary or the organizational documents Borrower's pension administrator stating the annual valuation of each Plan, the status of the Borrower's and each ERISA Affiliate's compliance with ERISA, in and the status of the Borrower's and each case in effect on such date; and ERISA Affiliate's funding of each Plan.
(C11) that attached thereto are true and correct copies Certificates of all governmental and regulatory authorizations and approvals required for insurance evidencing compliance with the due execution, delivery and performance by the Borrower insurance requirements of this Agreement and the documents contemplated herebyAgreement;
(iii12) A The certificate signed of incorporation and bylaws certified by either the chief financial officer, principal accounting officer or treasurer Secretary of the Borrower stating and each Guarantor;
(13) A Certificate of Good Standing issued by the Secretary of the State of its jurisdiction of organization evidencing that the Borrower and each Guarantor is a domestic corporation in good standing in such jurisdiction;
(A14) A Borrowing Base Certificate as of December 31, 2002;
(15) The following due diligence documents: (a) receipt and satisfactory review of the Subordinated Notes and the Subordinated Debentures, (b) receipt and satisfactory review of a Phase I Environmental Site Assessment in respect of the Property, (c) receipt of a satisfactory appraisal of the Property, and (d) receipt and satisfactory review of a Certificate of Compliance and a Borrowing Base Certificate as of December 31, 2002;
(16) The remainder of the Commitment Fee ($57,500) in immediately available funds; and
(17) All other documents, instruments and agreements that the Agent shall reasonably require in connection with this Agreement.
(b) Since the date of the Borrower's application for the Facilities, (i) there shall have occurred no material depreciation in the value of the Collateral, (ii) there shall have occurred no material adverse change in the operation, financial condition or business prospects of the Borrower or any of the Guarantors on a consolidated basis, (iii) no litigation shall have been commenced or threatened which, if successful, would have a Material Adverse Effect or challenges the transactions contemplated by this Agreement, (iv) no Default or Event of Default shall have occurred or be continuing, and (v) no representations made or information supplied to the Agent or any Lender shall have proven to be false or misleading in any material respect as of the date made.
(c) All representations and warranties contained in Section 4.01 are this Agreement and the other Loan Documents shall be true and correct on and in all material respects as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective Closing Date.
Appears in 1 contract
Sources: Commercial Loan and Security Agreement (Trans Lux Corp)
Conditions Precedent to Effectiveness. This Agreement (including the Commitments of the Lenders and the obligations of the Borrower hereunder) Amendment shall become effective as of the date hereof if, on or before April 15, 2011, all of the following conditions precedent have been satisfiedand only if:
(a) the Administrative Agent following statements shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all amounts then payable by the Borrower under the Existing Credit Facility be true and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart Notice of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each Borrowing delivered pursuant to Section 2.02 of the following documentsFirst Lien Credit Agreement, each signed by a Responsible Officer of the Borrower, dated the date of such Borrowing, attaching a date reasonably satisfactory to flow of funds for the Administrative Agent proceeds of the Initial Third Incremental Term B Advance and otherwise in form and substance satisfactory to the Administrative Agentstating that:
(i) Certified copies the representations and warranties contained in each Loan Document are true and correct in all material respects on and as of resolutions such date, before and after giving effect to such Borrowing and to the application of the Board proceeds therefrom, as though made on and as of Directors such date, other than any such representations or equivalent managing body warranties that, by their terms, refer to a specific date other than the date of the Borrower approving the transactions contemplated by this Agreement and such Borrowing, in which case as of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;such specific date; and
(ii) A certificate no Default has occurred and is continuing, or would result from such Borrowing or from the application of the Secretary proceeds therefrom;
(b) after giving pro forma effect to the incurrence of the Third Incremental Term B Facility, the Borrower shall be in compliance with all financial covenants set forth in Section 5.04 of the First Lien Credit Agreement;
(c) on or an Assistant Secretary prior to such date the Administrative Agent shall have received counterparts of this Amendment executed by the Loan Parties, the Third Incremental Term B Lenders and the Required Lenders;
(d) the Third Incremental Term B Lenders shall have received from the Borrower:
(i) certified by a Responsible Officer of the Borrower certifying (A) copies of the resolutions of the board of directors of the Borrower, (B) true and correct certified copies of the bylaws (or other applicable formation documents) of the Borrower and (C) the names and true signatures of the officers of the Borrower authorized to sign this Agreement each Loan Document to which it is or is to be a party and the other documents delivered hereunder and thereunder; and
(ii) a copy of a certificate of the Secretary of State of Delaware certifying (A) as to be delivered hereunder; a true and correct copy of the charter of the Borrower and each amendment thereto on file with the office of the Secretary of State of Delaware and (B) that attached thereto (1) such amendments are true and correct copies the only amendments to the Borrower's charter on file with the office of the organizational documents Secretary of the BorrowerState of Delaware, in each case in effect on such date; and (C2) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of has paid all franchise taxes to the date of such certificate as though made on and as of such date and (B3) no Event the Borrower is duly incorporated and in good standing under the laws of Default or Unmatured Event the State of Default has occurred and is continuing on the date of such certificate; andDelaware;
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in form and substance reasonably acceptable to the Administrative Agent; and
(ce) the Administrative Agent shall have received evidencepayment of the Third Incremental Term B Facility Closing Fee (as hereinafter defined) and the Lender Fee (as hereinafter defined);
(f) Dymas Funding Company, LLC, as arranger of the Third Incremental Term B Facility (the "Arranger"), and Greenstar Capital Finance LLC shall have received payment of the fees described in the separate fee letter dated as of the date hereof among Borrower, the Arranger and Greenstar Capital Finance LLC; and
(g) Each Third Incremental Term B Lender shall have received its ratable share in accordance with its Third Incremental Term B Commitment of warrants for 3,000,000 shares of common stock of UniTek Global Services, Inc. ("Unitek Global") with an exercise price of $0.01 per share (the "Warrants") in the form attached hereto as Exhibit A, as well as a joinder and amendment to the Registration Rights Agreement among Unitek Global and certain of Unitek Global's stockholders, each in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower has paid (or will pay with the proceeds of the initial Credit Extensions) all fees and, to the extent billed, expenses payable by the Borrower hereunder on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as to the Effective DateThird Incremental Term B Lenders.
Appears in 1 contract
Sources: First Lien Credit Agreement (UniTek Global Services, Inc.)
Conditions Precedent to Effectiveness. This Notwithstanding anything in this Agreement (including to the Commitments of the Lenders and the obligations of the Borrower hereunder) contrary, this Agreement shall not become effective if, on or before April 15, 2011, all until each of the following conditions precedent have has been satisfied:
(a) the Administrative Agent shall have received evidence, satisfactory to the Administrative Agent, that the Borrower has paid (satisfied or will pay with the proceeds of the initial Credit Extensions) all amounts then payable waived in writing by the Borrower under the Existing Credit Facility and that all commitments to make extensions of credit to the Borrower thereunder have been (or concurrently with the initial Advances will be) terminated;
(b) the Administrative Agent shall have received (i) a counterpart of this Agreement signed on behalf of each party hereto or (ii) written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement and each of the following documents, each dated a date reasonably satisfactory to the Administrative Agent and otherwise in form and substance satisfactory to the Administrative Agent:
(i) Certified copies of resolutions of the Board of Directors or equivalent managing body of the Borrower approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Borrower with respect to this Agreement and the documents contemplated hereby;
(ii) A certificate of the Secretary or an Assistant Secretary of Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Borrower of this Agreement and the documents contemplated hereby;
(iii) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Borrower stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such certificate as though made on and as of such date and (B) no Event of Default or Unmatured Event of Default has occurred and is continuing on the date of such certificate; and
(iv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLPin its sole discretion:
(i) The Borrower shall have duly executed and delivered to the WIFIA Lender this Agreement, counsel for the BorrowerWIFIA Bond, and the WIFIA Supplemental Resolution, each in form and substance reasonably acceptable to the Administrative Agent; and
(c) the Administrative Agent shall have received evidence, satisfactory to the Administrative AgentWIFIA Lender.
(ii) The Borrower shall have delivered to the WIFIA Lender complete and fully executed copies of (A) the Bond Resolution, together with any amendments, supplements, waivers or modifications thereto (but excluding any document that solely provides for the Borrower has paid issuance or incurrence of Additional Bonds, hedging obligations for any Bonds or Interim Financing) and (B) any Related Document with respect to which all or a portion of the proceeds are or will pay with the proceeds be applied to fund all or any portion of the initial Credit Extensions) all fees andTotal Project Costs, to the extent billed, expenses payable by the Borrower hereunder in each case that has been entered into on the Effective Date (including amounts then payable to the Joint Active Lead Arrangers and the Agents). Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower, the Lenders and the LC Issuers as or prior to the Effective Date, along with a certification in the Closing Certificate that each such document is complete, fully executed and in full force and effect, and that all conditions contained in the Related Documents that are necessary to the closing of the WIFIA transaction contemplated hereby (if any) have been fulfilled.
(iii) The Borrower shall have delivered to the ▇▇▇▇▇ ▇▇▇▇▇▇ fully executed copies of each Existing Construction Contract, together with any amendments, waivers or modifications thereto.
(iv) Counsel to the Borrower shall have rendered to the WIFIA Lender legal opinions satisfactory to the WIFIA Lender in its sole discretion (including those opinions set forth on Exhibit H-1 (Opinions Required from Counsel to Borrower) and bond counsel to the Borrower shall have rendered to the WIFIA Lender legal opinions satisfactory to the WIFIA Lender in its sole discretion (including those opinions set forth on Exhibit H-2 (Opinions Required from Bond Counsel)).
(v) The Borrower shall have delivered to the WIFIA Lender a certificate, signed by the Borrower’s Authorized Representative, substantially in the form attached hereto as Exhibit B (Form of Closing Certificate) (the “Closing Certificate”), designating the Borrower’s Authorized Representative, confirming such person’s position and incumbency, and certifying as to the satisfaction of the certain conditions precedent (and, if requested by the ▇▇▇▇▇ ▇▇▇▇▇▇, has provided evidence satisfactory to the WIFIA Lender of such satisfaction), including the following:
(A) as of the Effective Date, (1) the maximum principal amount of the WIFIA Loan (excluding any interest that is capitalized in accordance with the terms hereof), together with the amount of any other credit assistance provided under the Act to the Borrower, does not exceed forty- nine percent (49%) of reasonably anticipated Eligible Project Costs; (2) the aggregate amount of Eligible Project Costs previously incurred prior to the Effective Date does not exceed fifty-one percent (51%) of Eligible Project Costs; and (3) the total federal assistance provided to the Project, including the maximum principal amount of the WIFIA Loan (excluding any interest that is capitalized in accordance with the terms hereof), does not exceed eighty percent (80%) of Total Project Costs;
(B) the Borrower is in compliance with NEPA and any applicable federal, state or local environmental review and approval requirements with respect to the Project;
(C) the Borrower has (1) obtained a FEIN (as evidenced by the delivery of a copy of the Borrower’s W-9), (2) obtained a UEI Number, and
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Sources: Wifia Loan Agreement