Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedent: (a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender: (i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a). (ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement. (iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor. (v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder. (vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders. (vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents. (viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis. (ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders. (x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended. (xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date. (xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 3 contracts
Sources: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP), Senior Secured Debtor in Possession Credit Agreement, Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Amendment is subject to the satisfaction of the following conditions precedent:, unless specifically waived in writing by Agent (the date on which the conditions have been satisfied or waived in writing by Agent, the “Effective Date”):
(a) The Administrative Agent shall have received on a duly executed version of the following documents, in each case, in form and substance satisfactory to Agent:
(i) this Amendment;
(ii) that certain Officer’s Closing Certificate, dated as of the date hereof, made by ▇▇▇▇▇▇▇ in favor of Agent;
(iii) a certificate of the Secretary or before Assistant Secretary (or other equivalent officer, partner or manager) of each Borrower in form and substance satisfactory to Agent dated as of the Effective Date the following, each dated such day date hereof which shall certify (unless otherwise specified), i) copies of resolutions in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment theretoAgent, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functionsother equivalent governing body, member or partner) of such Person referred to in Section 3.01(a)(ii) were adopted Borrower authorizing the execution, delivery and the absence performance of this Amendment and any changes thereto Other Document related thereto, (a copy of which shall be attached to such certificate); and (Cii) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower incumbency and each Guarantor certifying the names and true signatures signature of the officers of the such Borrower authorized to execute this Amendment and such GuarantorOther Documents, respectively(iii) copies of the Organizational Documents of such Borrower as in effect on such date, authorized 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 [Innovex] Third Amendment to sign this 2nd A&R Credit Agreement and Limited Consent of formation not more than thirty (30) days prior to the date hereof and (iv) the good standing (or equivalent status) of such Borrower in its jurisdiction of organization, as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable jurisdiction) dated not more than thirty (30) days prior to the date hereof, issued by the Secretary of State or other documents to be delivered hereunder.appropriate official of such jurisdiction;
(viiv) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion legal opinions of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel which shall cover such matters incident to the transactions contemplated by this Amendment and related agreements as Agent may reasonably require; and
(v) all other documents and information as shall be reasonably requested by Agent or any Lender;
(b) Agent shall have received updated lien searches on each Borrower, the results of which shall be satisfactory to the Agent and the Required Lenders and shall reveal no liens other than Permitted Encumbrances;
(c) The representations and warranties made by the Loan PartiesParties contained herein and in the Credit Agreement, as amended hereby, and the Other Documents, shall be true and correct in substantially all material respects (without duplication of any materiality qualifier contained therein) as of the form 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 Exhibit D-1 heretoanother 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) 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
(e) Agent shall have received payment of all fees and expenses incurred by Agent and the Required Lenders in connection with the Credit Agreement, the Other Documents and this 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. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation obligations of the Non-rollup Revolving Credit Lenders Purchaser to make Non-rollup Revolving Credit Advances, and pay the obligation of Purchase Price for the Transferred Assets sold on the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Conveyance Date shall be subject to the satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) The Administrative Agent a copy of this Agreement duly executed by each of the parties hereto;
(b) a certificate of a Responsible Officer of the Seller, dated the Closing Date, certifying (i) as to its Constituent Documents, (ii) that each of the representations and warranties made by such Person under the Facility Documents are true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall have received on be true and correct as of such earlier date), (iii) that no Default or before Event of Default has occurred and is continuing, and (iv) as to the Effective Date incumbency and specimen signature of each of its Responsible Officers authorized to execute the followingFacility Documents to which it is a party;
(c) a good standing certificate, each dated such day as of a recent date for the Seller, issued by the Maryland Department of Assessments and Taxation;
(unless otherwise specified)d) proper financing statements describing the Transferred Assets, and naming the Seller 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 security interest in all Transferred Assets;
(e) 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 Transferred Assets previously granted by the Seller;
(f) copies of tax and judgment lien searches in all jurisdictions reasonably satisfactory requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Initial Lenders (unless otherwise specified) Purchaser and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(aits assigns).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of dated a date reasonably near to the Effective Closing Date), if applicableand with respect to such requests for information or UCC searches, by listing all effective financing statements which name the Secretary of State of the jurisdiction of its incorporation or organizationSeller as debtor, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) together with copies of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto financing statements (a copy none of which shall be attached to such certificatecover any Transferred Assets); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.and
(vg) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter favorable legal opinions of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially Seller with respect to the form perfection and enforceability of Exhibit D-1 heretothe security interest hereunder and such other matters as the Purchaser or any assignee thereof may reasonably request.
Appears in 2 contracts
Sources: Sale and Contribution Agreement (Blue Owl Credit Income Corp.), Sale and Contribution Agreement (Owl Rock Technology Income Corp.)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the satisfaction of conditions precedent that the following conditions precedent:
Lender has received (a) The Administrative Agent shall have received evidence, reasonably satisfactory to the Lender, that all fees and (to the extent billed) expenses which are payable on or before the Effective Date date hereof to the followingLender hereunder or in connection herewith have been (or concurrently with the execution of this Agreement by the parties will be) paid in full; and (b) each of the following documents:
(i) A copy of each of the certificate of incorporation, each together with all amendments thereto, and the bylaws of the Borrower, certified by the Secretary or Assistant Secretary of the Borrower.
(ii) An incumbency certificate from the Borrower, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the officers of the Borrower authorized to sign this Agreement, any Notes and any Borrowing Notice, upon which certificate the Lender shall be entitled to rely until informed of any change in writing by the Borrower.
(iii) A copy of a certificate of good standing of the Borrower, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower.
(iv) A copy, certified by the Secretary or Assistant Secretary of the Borrower, of resolutions of the Borrower’s Board of Directors authorizing the execution, delivery and performance of the Loan Documents.
(v) A certificate, signed by an Authorized Officer of the Borrower, stating that on the Closing Date, no Default or Unmatured Default has occurred and is continuing with respect to the Borrower.
(vi) Any Notes requested by the Lender pursuant to Section 2.12 payable to the order of the Lender.
(vii) Copies of all governmental approvals, if any, necessary for the Borrower to enter into the Loan Documents and to obtain Credit Extensions hereunder.
(viii) Such other documents as the Lender or its counsel may reasonably request, including, without limitation, opinions of legal counsel to the Borrower, addressed to the Lender, dated such day (unless otherwise specified)as of the Closing Date, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 2 contracts
Sources: Credit Agreement (Pepco Holdings Inc), Credit Agreement (Pepco Holdings Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial any Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction or waiver of the following conditions precedent:precedent (the first date on which all such conditions shall have been satisfied or waived being the “Effective Date”):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) Executed counterparts of this Agreement and the Guaranty.
(ii) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a2.17(a).
(iiiii) Certified copies of the resolutions of the boards of directors of each of the Borrower Borrowers and each Guarantor (as constituted immediately prior to the Effective Date) in customary form approving the execution and delivery of this Agreement.
(iiiiv) A copy of the charter or other constitutive document of each of the Borrowers and each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(ivv) A certificate of each of the Borrower Borrowers and each Guarantor signed on behalf of the each such Borrower and each such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), in customary form, certifying as to (A) the accuracy and completeness as of the Effective Date of the charter of the each such Borrower or such Guarantor delivered in connection with this Agreement and the absence of any changes theretothereto (other than those, if any, occurring on the Effective Date upon effectiveness of, and as contemplated by, the Plan); (B) the accuracy and completeness of the bylaws (or equivalent organizational document) delivered in connection with this Agreement of the each such Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate)thereto; and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the any Borrower or any Guarantor, except as set forth in the Plan.
(vvi) A certificate of the Secretary or an Assistant Secretary of each of the Borrower Borrowers and each Guarantor Guarantor, in customary form, certifying the names and true signatures of the officers of the each such Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunderhereunder to which it is a party.
(vivii) A certificate (in form and substance reasonably satisfactory to the Administrative Agent) of the Chief Financial Officer of the Company attesting to the Solvency of the Loan Parties, taken as a whole, immediately after giving effect to the Transactions.
(viii) A certificate of a Responsible Officer of the Company, in customary form, certifying that the conditions specified in Sections 3.01(f)(i) and Sections 3.02(i)(A) and (B) have been satisfied.
(ix) The following: (A) such reasonably satisfactory evidence that certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV heretoEquity, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V heretoDebt, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, have been delivered to the administrative agent under the Term Facility (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereofthe Security Agreement, covering the Collateral described in Article IX hereoftherein, in each case completed in a manner reasonably satisfactory to the Lender PartiesAdministrative Agent, and (C) evidence of insurance (to the extent required to be maintained pursuant to this Agreement) as reasonably requested by the Initial LendersAdministrative Agent.
(viiA) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property The Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests in the Revolving Facility Collateral and the second priority Liens and security interests in the Term Facility Collateral, in each case created under the Security Agreement, have been taken or will be taken in accordance with the terms of the Loan Documents, (B) the Intellectual Property Security Agreement, duly executed by each Loan Party having Intellectual Property covered thereby as of the Effective Date, together with evidence that all actions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the second priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
, (viiiC) A forecast reasonably satisfactory the Deposit Account Control Agreements and Securities Account Control Agreements, in each case referred to in the Security Agreement and duly executed by the appropriate parties and (D) the Intercreditor Agreement, duly executed by the parties thereto; provided, however, that if the Company is unable to deliver one or more of the items described in clause (C) above after the exercise of commercially reasonable efforts, delivery of such undelivered items shall not be a condition precedent under this Section 3.01, and the Company hereby agrees to deliver such items to the Administrative Agent within 45 days after the Effective Date; provided further that in each case, the Administrative Agent may, in its reasonable discretion, grant extensions of such time period.
(xi) Certified copies of UCC, United States Patent and the Initial Lenders detailing the Borrower’s anticipated monthly income statementTrademark Office and United States Copyright Office, balance sheet tax and cash flow statementjudgment lien searches or equivalent reports or searches, each of a recent date listing financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions, as applicable, in which any Loan Party is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens to be satisfied or discharged on a Consolidated basis for the Borrower Effective Date pursuant to the Plan or Permitted Liens and other Liens permitted under Section 5.02(a)).
(xii) (A) audited annual financial statements of the Company and its Subsidiaries, together with on a written set of assumptions supporting such statementsConsolidated basis, for each month during the period commencing on the Petition Date year ended December 31, 2009; (B) interim unaudited monthly and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated quarterly financial statements of the Borrower Company and its Subsidiaries as at since December 31, 2008 2009 through the most recently ended fiscal month ending at least 30 days prior to the Effective Date (or in the case of quarterly financial statements, through the most recently ended fiscal quarter ending at least 45 days prior to the Effective Date); and (C) the Company’s business plan which shall include a financial forecast on a monthly basis for the Fiscal Year then endedfirst twelve months following the funding date of the Term Loan Credit Agreement and on an annual basis thereafter through the year 2014, prepared by the Company’s management.
(xixiii) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than Existing Letters of Credit) to be issued, on the Effective Date.
(xiixiv) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 H hereto.
Appears in 2 contracts
Sources: Senior Secured Revolving Facility Credit Agreement (Chemtura CORP), Senior Secured Revolving Facility Credit Agreement (Chemtura CORP)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the This Agreement shall become effective upon satisfaction of the following conditions precedent:precedent (the “Closing Date”):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAdministrative Agent:
(i) The Notes payable to the order An executed counterpart of this Agreement signed on behalf of the Non-rollup Revolving Credit Lenders to Company, the extent requested in accordance with Section 2.16(a).Guarantors, the Administrative Agent and each Lender;
(ii) Certified copies To the extent requested pursuant to Section 2.11(a), a duly executed Note of the resolutions of Company, for the boards of directors account of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.requesting Lender;
(iii) A copy Certified copies of the charter UCC, tax and judgment lien searches, or other constitutive document of equivalent reports or searches, each Guarantor and each amendment thereto, certified (as of a recent date reasonably near listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name certain identified Loan Parties as debtor and that are filed in those state and county jurisdictions in which such Loan Party is organized or maintains its principal place of business, none of which encumber the Effective Date), if applicable, Collateral covered or intended to be covered by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.Collateral Documents (other than Permitted Liens),
(iv) A certificate of each the Secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), Company certifying as to (A) the accuracy and completeness copies attached thereto of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board Board of directors Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (or persons performing similar functionsB) copies attached thereto of such Person referred to in Section 3.01(a)(ii) were adopted the Certificate of Incorporation and by-laws of the absence of any changes thereto (a copy of which shall be attached to such certificate); Company and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder.;
(v) A certificate from the relevant Secretary of State dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by each Loan Party;
(vi) The following: A certificate of a duly authorized officer of the Company, dated the Closing Date, certifying that as of such date, (A) such certificates representing the Initial Pledged Equity representations and warranties contained in Section 6.01 are correct in all material respects on and as of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best effortsClosing Date, (B) proper financing statements (Form UCC-1 no Default or a comparable form) under Event of Default as of the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect date thereof has occurred and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, is continuing and (C) evidence from the Chief Financial Officer, the Solvency of insurance as reasonably requested by the Initial Lenders.Company on a consolidated basis both before and after giving effect to the transactions occurring on such date;
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in a form reasonably satisfactory to the Administrative Agent;
(viii) Opinions of the local counsel to the Borrower identified on Schedule 5.01(a)(viii), in each case, in a form reasonably satisfactory to the Administrative Agent;
(ix) A Perfection Certificate, duly executed by each of the Loan Parties;
(x) The Security Agreement, duly executed by each of the Loan Parties;
(xi) The Pledge Agreement, duly executed by each Specified Pledgor; and
(xii) Subject to Section 7.11(b), delivery of all documents, instruments and certificates and evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary or desirable in order to create and perfect Liens on the Collateral has been taken.
(b) The Company shall have paid all reasonable accrued fees and expenses of the Original Arrangers, the Administrative Agent and the Lenders which are due and payable on the Closing Date to the extent invoiced (including fees set forth in the Fee Letter and the reasonable and documented fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties, in substantially Original Arrangers and the form of Exhibit D-1 hereto.Administrative Agent);
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit AgreementOn or before the date hereof, the obligation of each Term Lender Borrower shall deliver to make a Term Advance pursuant the Agent the following documents, properly executed and in form and content acceptable to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Agent and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedentBanks:
(a) The Administrative Agent shall have received on or before a Note, substantially in the Effective Date the followingform of Exhibit A, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders applicable Banks (to the extent requested in accordance with by any such Bank pursuant to Section 2.16(a2.4), at least three (3) Business Days prior to the Execution Date.
(iii) Certified copies a certified copy of resolutions or similar authorizing documentation of the resolutions of the boards of directors governing body of each of the Borrower and each the Guarantor approving authorizing the execution and delivery of this AgreementLoan Documents to which such Person is a party.
(iiiii) A a certificate of an officer of the Borrower and a certificate of the corporate secretary of the Guarantor, each, as to the incumbency and signatures of the officers of such Person signing the Loan Documents to which it is a party.
(i) a certified copy of the charter or other constitutive document certificate of each Guarantor incorporation and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate bylaws of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(vii) A certificate Certificates of Good Standing issued by the Secretary of the Secretary or an Assistant Secretary State of the Delaware in respect of each of the Borrower and each Guarantor certifying the names Guarantor, each, dated not more than 30 days prior to the date hereof.
(d) an opinion of counsel to the Borrower and true signatures the Guarantor, opining as to the due authorization, execution, delivery and enforceability of, in the case of the officers Borrower, this Agreement, and, in the case of the Guarantor, the Guaranty, and such other customary matters as the Agent may reasonably require.
(e) at least three (3) Business Days prior to the Execution Date, all documentation and other information regarding the Borrower and the Guarantor requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and or the other documents to be delivered hereunder.
Guarantor at least ten (vi10) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory Business Days prior to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Execution Date.
(xiif) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel at least five days prior to the Loan PartiesExecution Date, in substantially if the form Borrower qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification.
(g) the Agent shall have received all fees and other amounts due and payable on or prior to the Execution Date, including, to the extent invoiced, reimbursement or payment of Exhibit D-1 heretoall out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. For purposes of determining compliance with the conditions of this Section 6.1, each Bank 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 the Banks unless an officer of the Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Bank prior to the date hereof, specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the satisfaction of the following conditions precedent:
(a) The Administrative the Agent shall have received on behalf of each Lender (or before the Effective Date the followingcertain Lenders, each dated such day (unless otherwise specified)as indicated below) has received, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent, acting reasonably:
(i) The Notes payable to the order a duly executed copy of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).this Agreement;
(ii) Certified copies a certified copy of the resolutions articles and by-laws of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.Borrower;
(iii) A a certified copy of the charter or other constitutive document of each Guarantor articles and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State by-laws of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.Guarantor;
(iv) A a certificate of each good standing under the laws of British Columbia in respect of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the corporate existence of the Borrower or any Guarantor.Borrower;
(v) A a certificate of existence under the laws of State of Delaware in respect of the corporate existence of the Guarantor;
(vi) a certified resolution of the Board of Directors of the Borrower with respect to this Agreement;
(vii) a certified resolution of the Board of Directors of the Guarantor with respect to this Agreement;
(viii) an incumbency certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names name and true signatures of the Borrower's officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents Loan Documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for which the Borrower and its Subsidiaries, together with is a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.party;
(ix) A DIP Budget reasonably satisfactory an incumbency certificate of the Guarantor certifying the name and true signatures of the Guarantor’s officer authorized to the Administrative Agent and the Initial Lenders.sign this Agreement;
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable an opinion of ▇Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Borrower and the Guarantor addressed to the Agent and each Lender;
(xi) an opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Guarantor addressed to the Agent and each Lender;
(xii) an opinion of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Canada LLP, counsel to the Loan PartiesLenders, addressed to the Agent and each Lender;
(xiii) all such other agreements, certificates, declarations, opinions and other documents as are reasonably required by the Agent to confirm or establish the completion or satisfaction of the conditions to the Lenders' obligations hereunder and of which the Borrower is advised in a timely manner; and
(xiv) all documentation and other information regarding the Borrower or the Guarantor requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the AML Legislation, to the extent requested in writing of the Borrower at least 10 days prior to the Effective Date;
(b) provided (A) such information is reasonably requested from the Borrower and/or the Guarantor at least 5 Business Days prior to the Effective Date and (B) the Borrower and/or the Guarantor qualify as a “legal entity customer” under the Beneficial Ownership Regulation, and the Agent and each requesting Lender received, at least three days prior to the Effective Date, in substantially connection with the Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to the Borrower and/or Guarantor;
(c) the Borrower shall have paid to the Agent for the account of the Agent, the co-lead arrangers and the Lenders, as applicable, and in a timely manner, all upfront and arrangement fees required to be paid by the Borrower on or before the Effective Date in connection with this Agreement; and
(d) the Agent shall have received a withdrawal letter from ATB Financial, such withdrawal letter to be in form of Exhibit D-1 heretoand substance satisfactory to the Agent, acting reasonably. Each Lender hereby authorizes the Agent to confirm to the Borrower on the Effective Date that the conditions precedent set forth in this Section 7.1 have been satisfied on or prior to the Effective Date, provided such Lender has not advised the Agent in writing prior to such Effective Date that such Lender is not satisfied that the Borrower has complied with such conditions precedent.
Appears in 1 contract
Sources: Credit Agreement (Ovintiv Inc.)
Conditions Precedent to Effectiveness. (a) The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the prior or concurrent satisfaction of the following conditions precedent:
(a) The and the Administrative Agent shall have received on or before receive for the Effective Date account of each Lender party to the Agreement the following, each dated such day (each, unless otherwise specified)noted, dated the Effective Date, and in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Initial LenderArranger:
(i) The Notes payable Copies of resolutions of the Board of Directors of the Borrower (or its Executive Committee, together with evidence of the authority of the Executive Committee) approving this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, certified as of a recent date prior to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).Effective Date;
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder.;
(iii) Certified copies of the Borrower’s Certificate of Incorporation, together with good standing certificates from the State of Delaware and the State of Minnesota, each to be dated a recent date prior to the Effective Date;
(iv) Copies of the Borrower’s Bylaws, certified as of the Effective Date by its Secretary or an Assistant Secretary;
(v) Executed originals of this Agreement and the other documents to be delivered by the Borrower hereunder;
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President and General Counsel to the Borrower, substantially in the form of Exhibit F hereto;
(vii) A favorable opinion of O’Melveny & ▇▇▇▇▇ LLP, counsel to for the Loan PartiesAgents, substantially in substantially the form of Exhibit D-1 G hereto;
(viii) A certificate of an authorized officer of the Borrower to the effect that since October 26, 2002, there has been no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole;
(ix) A certificate of an authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, to the effect that (i) the representations and warranties in Section 4.01 are correct on and as of the Effective Date, to the same extent as though made on and as of the Effective Date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case they were correct as of such earlier date; (b) such Borrower has performed in all material respects all agreements and satisfied all conditions which this Agreement provides shall be performed and satisfied by it on or before the Effective Date; and (c) no event has occurred and is continuing, or would result from the Borrowings made on and as of the Effective Date or from the application of the proceeds from such Borrowings, which constitutes an Event of Default or a Potential Event of Default;
(x) Payment of up front fees to the Lenders, as agreed by and among the Arranger, Lenders and the Borrower;
(xi) Evidence of (i) the contemporaneous repayment of any indebtedness of the Borrower under the Existing Credit Agreement (including borrowings and accrued interest), (ii) the contemporaneous payment of fees payable, if any, by the Borrower under the Existing Credit Agreement and (iii) the contemporaneous termination of the Existing Credit Agreement on the Effective Date.
(b) The Administrative Agent shall have received such other approvals, opinions or documents as the Requisite Lenders through the Administrative Agent may reasonably request (which request shall be made in sufficient time to allow the Borrower to comply therewith).
Appears in 1 contract
Sources: Revolving Credit Agreement (Hormel Foods Corp /De/)
Conditions Precedent to Effectiveness. The effectiveness This Amendment shall become effective as of the date of this Credit Amendment when, and only when, Administrative Agent shall have received the following, in form and substance satisfactory to Administrative Agent:
(a) counterparts of this Amendment, duly executed each Borrower, Agents and the Lenders;
(b) the Ratification and Reaffirmation of Guaranty and Pledge Agreement, the obligation duly executed by TerrAscend Guarantors;
(c) a certificate for each Borrower and each TerrAscend Guarantor, duly executed and delivered by an Authorized Officer of each Term Lender such Person, as to: (i) resolutions of each such Person’s board of managers/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 make a Term Advance pursuant to Section 2.01(a)(i)the extent relevant, the initial obligation all aspects of the Non-rollup Revolving Credit Lenders Documents applicable to make Non-rollup Revolving Credit Advances, such Person and the obligation execution, delivery and performance of the Initial Issuing Bank to issue the initial Letter of each Credit areDocument, in each case, subject to be executed by such Person; (ii) the satisfaction incumbency and signatures of its Authorized Officers and 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) each such Person’s Organization Documents, as amended, modified or supplemented as of the following conditions precedent:
date hereof, certified by the appropriate officer or official body of the jurisdiction of organization of such Person, or, for each of clauses (ai), (ii) The and (iii) above, a confirmation that such documents have not changed since the most recent certification to Administrative Agent shall have received on and (iv) certificates of good standing or before letter of status (or the Effective Date the followinglocal equivalent thereof, if applicable) with respect to such Person, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory within a recent date prior to the Initial Lenders date hereof, such certificates to be issued by the appropriate officer or official body of the jurisdiction of organization of such Person, which certificate shall indicate that such Person is in good standing in such jurisdiction;
(unless otherwise specifiedd) and (except for the Notes) payment in sufficient copies for each Initial Lender:
cash by Borrowers of (i) The Notes payable an amendment fee in an amount equal to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
$175,000, (ii) Certified copies of all costs and expenses incurred by Agents in connection with the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution preparation, execution, and delivery of this Agreement.
Amendment and each other Credit Documents executed in connection herewith or relating hereto and (iii) A copy all other costs and expenses due and payable to any Agent pursuant to Section 12.05 of the charter or Credit Agreement (including the fees, disbursements and other constitutive document charges of each Guarantor and each amendment thereto, certified (counsel to Agents as of a date reasonably near the Effective Dateprovided therein), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed case, as set forth in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), that certain Disbursement Letter duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel ; and
(e) such other documents and opinions to be executed or delivered by the Loan Parties, in substantially Credit Parties as may be reasonably requested by the form of Exhibit D-1 heretoAdministrative Agent.
Appears in 1 contract
Sources: Credit Agreement (TerrAscend Corp.)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the satisfaction condition precedent that Bank shall have received, in form and substance satisfactory to Bank, such documents, and completion of the following conditions precedentsuch other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory duly executed original signature pages to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:Loan Documents;
(ib) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).[Reserved];
(iic) Certified copies Borrower’s Operating Documents and a good standing certificate of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the State of Delaware, together with a certificate of foreign qualification from each jurisdiction in which the Borrower is qualified as such, in each case dated as of its incorporation or organizationa date no earlier than thirty (30) days prior to the Effective Date;
(d) duly executed original signature pages to the Secretary’s Certificate with completed Borrowing Resolutions for Borrower;
(e) [reserved];
(f) [reserved];
(g) [reserved];
(h) certified copies, 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 case may beLiens indicated in any such financing statements either constitute Permitted Liens or have been or, thereof as being a true and correct copy thereof.in connection with the initial Credit Extension, will be terminated or released;
(ivi) A certificate the Perfection Certificate of each Borrower, together with the duly executed original signature page thereto;
(j) a legal opinion of the Borrower Borrower’s counsel, in form and each Guarantor signed on behalf of the Borrower and such Guarantorsubstance acceptable to Bank, respectively, by in its President or a Vice President and its Secretary or any Assistant Secretaryreasonable discretion, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) Date together with the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes duly executed original signature thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.;
(vk) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized evidence satisfactory to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions Bank that the Initial Lenders may deem necessary or desirable insurance policies required by Section 6.7 hereof are in order to perfect full force and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Partyeffect, together with appropriate evidence that all actions that showing lender loss payable and/or additional insured clauses and cancellation notice to Bank (or endorsements reflecting the Initial Lenders may deem reasonably necessary or desirable same) in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms favor of Bank; and
(l) payment of the Loan Documentsfees and Bank Expenses then due as specified in Section 2.4 hereof.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation obligations of the Non-rollup Revolving Credit Fronting Bank and the Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter Extensions of Credit are, in hereunder shall not become effective until the date (the “Closing Date”) on which each case, subject to the satisfaction of the following conditions precedentis satisfied:
(a) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such day (unless otherwise specified)the Closing Date, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for the Fronting Bank and each Initial Lender:
(i) The Notes payable to Counterparts of (A) this Agreement, duly executed by the order of Borrower, the Non-rollup Revolving Credit Lenders to Administrative Agent, the extent requested in accordance with Section 2.16(a)Fronting Bank and the Initial Banks and (B) the Side Letter, duly executed by the Borrower and the Initial Banks.
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying certifying:
(A) the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement the Loan Documents;
(B) that attached thereto are true and correct copies of: (1) the Declaration of Trust of the Borrower, together with all amendments thereto, as in effect on such date; (2) the resolutions of the Borrower’s board of trustees approving the execution, delivery and performance by the Borrower of the Loan Documents; (3) all documents evidencing other necessary corporate or other similar action, if any, with respect to the execution, delivery and performance of the Loan Documents by the Borrower; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of “Governmental Approval” required to be obtained by the Borrower in connection with the execution, delivery and performance by the Borrower of the Loan Documents (including the order of the Securities and Exchange Commission); and
(C) that the resolutions referred to in clause (B)(2) above have not been modified, revoked or rescinded and are in full force and effect on such date.
(iii) A certificate signed by the Treasurer or Assistant Treasurer of the Borrower, certifying as to:
(A) the delivery to the Fronting Bank and 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
(B) the absence of any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the Borrower or the Borrower and its Principal Subsidiaries, taken as a whole, since June 30, 2005, except as disclosed in the Disclosure Documents.
(iv) A certificate of a duly authorized officer of the Borrower stating that (i) the representations and warranties of the Borrower contained in Section 6.01 are correct, in all material respects, on and as of the Closing Date before and after giving effect to any Extensions of Credit to be made on such date and the application of the proceeds thereof, and (ii) no event has occurred and is continuing that constitutes an Event of Default or Unmatured Default, or would result from such initial Extensions of Credit or the application of the proceeds thereof.
(v) Such financial, business and other documents to be delivered hereunderinformation regarding the Borrower and its Principal Subsidiaries, as the Fronting Bank or any Lender shall have reasonably requested.
(vi) The following: Favorable opinions of:
(A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇ LLP▇▇, counsel to the Loan PartiesAssistant General Counsel of NUSCO, in substantially the form of Exhibit D-1 5.01A hereto, and of such other counsel as relied upon therein; and as to such other matters as the Fronting Bank or any Lender may reasonably request; and
(B) King & Spalding LLP, special New York counsel to the Administrative Agent, in substantially the form of Exhibit 5.01B hereto and as to such other matters as the Fronting Bank or any Lender may reasonably request.
(b) All fees and other amounts payable pursuant to Section 2.03 hereof or pursuant to the Fee Letter shall have been paid (to the extent then due and payable).
(c) The Administrative Agent shall have received such other approvals, opinions and documents as the Fronting Bank or the Majority Lenders, through the Administrative Agent, shall have reasonably requested as to the legality, validity, binding effect or enforceability of this Agreement or the financial condition, operations, properties or prospects of the Borrower and its Principal Subsidiaries.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation This Agreement shall become effective on and as of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, first date (the “Amendment and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of Restatement Effective Date”) on which the following conditions precedentprecedent have been satisfied:
(a) The Administrative Agent shall have received duly executed counterparts of this Agreement from the Borrower, the Agent and each Lender set forth on Schedule I hereto.
(b) The Borrower shall have paid all accrued fees and expenses of the Agent, the Arrangers and the Lenders (including the accrued fees and expenses of counsel to the Agent).
(c) The Agent shall have received on or before the Amendment and Restatement Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Agent and (except for the any Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower and each Guarantor approving the execution and delivery of this Agreement, the by-laws of the Borrower, and of all documents evidencing other necessary corporate action.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(vii) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and any Notes to be delivered by it and the other documents to be delivered hereunder.
(viiii) The following: (A) such certificates representing articles or certificate of incorporation of the Initial Pledged Equity of domestic entities referred to Borrower as in effect on Schedule IV heretothe Amendment and Restatement Effective Date, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested certified by the Initial LendersSecretary of State of the State of Delaware as of a recent date and a good standing certificate for the Borrower from the Secretary of the State of Delaware as of a recent date.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiiiv) A favorable opinion of ▇▇▇A▇▇▇▇▇ & P▇▇▇▇▇ LLP, counsel to for the Loan PartiesBorrower, substantially in substantially the form of Exhibit D-1 heretoD hereto and as to such other matters as any Lender through the Agent may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Science Applications International Corp)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation obligations of the Non-rollup Revolving Credit Lenders Purchaser to make Non-rollup Revolving Credit Advances, and pay the obligation of Purchase Price for the Transferred Assets sold on the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Conveyance Date shall be subject to the satisfaction of the following conditions precedenton or prior to the Closing Date:
(a) The Administrative Agent shall have received on or before a copy of this Agreement duly executed by each of the Effective Date parties hereto;
(b) a certificate of a Responsible Officer of the followingSeller, each dated such day (unless otherwise specified)the Closing Date, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
certifying (i) The Notes payable as to the order its Constituent Documents, (ii) that each of the Non-rollup Revolving Credit Lenders representations and warranties made by such Person under the Facility Documents are true and correct as of the Closing Date (except to the extent requested such representations and warranties expressly relate to any earlier date, in accordance with Section 2.16(awhich case such representations and warranties shall be true and correct as of such earlier date).
, (iiiii) Certified copies that no Default or Event of Default has occurred and is continuing, and (iv) as to the resolutions of the boards of directors incumbency and specimen signature of each of its Responsible Officers authorized to execute the Borrower and each Guarantor approving the execution and delivery of this Agreement.Facility Documents to which it is a party;
(iiic) A copy of the charter or other constitutive document of each Guarantor and each amendment theretoa good standing certificate, certified (dated as of a recent date reasonably near for the Effective Date)Seller, if applicable, issued by the Secretary of State of the jurisdiction State of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.Delaware;
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (Bd) proper financing statements (Form UCC-1 describing the Transferred Assets, and naming the Seller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or a comparable form) other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions that the Initial Lenders as may deem be necessary or desirable in order to perfect and protect the Liens and Purchaser’s security interest created in all Transferred Assets;
(e) copies of properly authorized termination statements or purported to be created under Article IX hereofstatements of release (on Form UCC-3) or other similar instruments or documents, covering the Collateral described in Article IX hereofif any, in each case completed 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 a manner reasonably satisfactory to the Lender Parties, Transferred Assets previously granted by the Seller;
(f) copies of tax and (C) evidence of insurance as judgment lien searches in all jurisdictions reasonably requested by the Initial Lenders.
Purchaser or its assignees and requests for information (vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time a similar UCC search report certified by a party acceptable to time in accordance with the Purchaser and its terms, the “Intellectual Property Security Agreement”assigns), duly executed by each Loan Partydated 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 as debtor, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms copies of the Loan Documents.such financing statements (none of which shall cover any Transferred Assets); and
(viiig) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter favorable legal opinions of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially Seller with respect to the form perfection and enforceability of Exhibit D-1 heretothe security interest hereunder and such other matters as the Purchaser or any assignee thereof may reasonably request.
Appears in 1 contract
Sources: Sale and Contribution Agreement (Apollo Debt Solutions BDC)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation obligations of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit AdvancesLoans, and the obligation of the Initial Issuing Bank to issue the initial any Letter of Credit areCredit, in each case, are subject to the satisfaction fulfillment of each of the following conditions precedenton or before September 10, 2020:
(a) The Administrative Agent shall have received on or before the Effective Date each of the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderLender Group:
(i) The Notes payable to This Agreement duly executed by the order of Borrower, the Non-rollup Revolving Credit Lenders to Lenders, and the extent requested in accordance with Section 2.16(a).Administrative Agent;
(ii) Certified copies of Any Revolving Loan Notes requested by any Lender duly executed by the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.Borrower;
(iii) A copy Customary legal opinions of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ (US) LLP, counsel to the Loan Credit Parties, as well as any local counsel to the Credit Parties (if reasonably requested by the Administrative Agent), addressed to the Lender Group, covering the transactions contemplated by the Loan Documents;
(iv) If Loans are to be made on the Closing Date, a duly executed Request for Loan with disbursement instructions attached thereto;
(v) A certificate signed by an Authorized Signatory of each Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the certificate of incorporation or formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State (or relevant equivalent office) of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents, and with respect to the Borrower, authorizing the borrowings hereunder, and (D) certificates of good standing, existence, or similar appellation from each jurisdiction in substantially which such Person is organized and, to the form extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Person is required to be qualified to do business; provided that if a document referenced in clause (A) or (B) was delivered in connection with the Prior Credit Agreement or not required to be delivered in connection with the Prior Credit Agreement, then delivery of Exhibit D-1 heretosuch document shall not be required so long as the applicable Credit Party delivers an officer’s certificate certifying that no changes have been made to such document, and such document remains in full force and effect;
(vi) An officer’s certificate executed by a Financial Officer of the Borrower certifying (A) the solvency of the Credit Parties, taken as a whole, as of the Closing Date, (B) that as of the Closing Date, both before and after the effectiveness of this Agreement and the other Loan Documents (x) all of the representations and warranties of the Credit Parties under this Agreement and the other Loan Documents are true and correct in all material respects (provided that if any representation or warranty already includes a materiality or material adverse effect qualifier, such representation or warranty is true and correct in all respects and if any such representation or warranty expressly relates to a prior date, such representation or warranty shall be so true and correct on and as of such prior date) and (y) no Default or an Event of Default is in existence, (C) that there has been no materially adverse change to the financial information previously delivered to the Administrative Agent under Section 4.1(d) below, (D) that no change in the business, financial condition, results of operations, liabilities (contingent or otherwise), or properties of the Borrower and its Subsidiaries (taken as a whole) shall have occurred since December 31, 2019, which change has had or would be reasonably expected to have a Materially Adverse Effect, and (E) that (x) all material Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or the Loan Documents and (y) attached thereto are true, correct, and complete copies of all such material Necessary Authorizations, if any;
(vii) Payment of all fees payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, and payment of fees and expenses of counsel to the Administrative Agent;
(viii) [Reserved];
(ix) Mutually acceptable payoff letter duly executed by the parties thereto evidencing the repayment of the indebtedness under the Prior Credit Agreement and Prior Loan Documents and each parties’ obligations under the Prior Credit Agreement and Prior Loan Documents shall terminate on the Closing Date;
(x) Mutually acceptable payoff letter duly executed by the parties thereto evidencing the repayment of the indebtedness under the 364-Day Credit Agreement and 364-Day Loan Documents and each parties’ obligations under the 364-Day Credit Agreement and 364-Day Loan Documents shall terminate on the Closing Date; and
(xi) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lead Arrangers and the Administrative Agent shall have completed their financial, regulatory, and legal due diligence of the Credit Parties, and all credit investigations and background checks, and the results, form, and substance of each of the foregoing items shall be satisfactory to the Administrative Agent.
(c) The Lead Arrangers and the Administrative Agent shall be satisfied that no change in the business, financial condition, results of operations, liabilities (contingent or otherwise), or properties of the Borrower and its Subsidiaries (taken as a whole) shall have occurred since December 31, 2019, which change has had or would be reasonably expected to have a Materially Adverse Effect.
(d) The Lead Arrangers shall have received and be satisfied with (i) the financial statements (including balance sheets, statements of income, and statements of cash flows) described in Section 5.1(i) and (ii) the Borrower’s 2020 financial performance and condition estimate.
(e) The Administrative Agent shall have received a Compliance Certificate calculated as of the last day of the fiscal quarter ended June 30, 2020, demonstrating that the Borrower is in compliance with the Financial Covenant;
(f) The Administrative Agent shall have received all documentation and information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, no later than five (5) Business Days prior to the Closing Date; and
(g) The Administrative Agent shall have received from the Lenders all tax forms and certificates required by Section 2.9.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to This Agreement will become effective upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards Boards of directors Directors of each of the Borrower and each Material Guarantor approving the execution amendment and delivery restatement of the Existing Agreement on the terms set forth in this Agreement, and of all documents evidencing other necessary constitutive action and, if any, governmental and other third party approvals and consents, if any, with respect to this Agreement and each other Loan Document.
(iiiii) A To the extent available, and provided the same has not been previously delivered to the Administrative Agent, a copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, ) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iviii) A certificate of each of the Borrower and each Material Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes theretochange thereto since the Prior Effective Date (a copy of which, if available on the Effective Date and not previously delivered to the Administrative Agent, shall be attached to such certificate); (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii3.01(a)(i) were adopted and the absence of any changes thereto change since the Prior Effective Date (a copy of which which, if available on the Effective Date and not previously delivered to the Administrative Agent, shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor; (D) the accuracy in all material respects of the representations and warranties made by the Borrower or such Guarantor in the Loan Documents to which it is or is to be a party as though made on and as of the Effective Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; and (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default.
(viv) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Material Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(viv) The following: (A) such Such certificates representing the Initial Pledged Equity of domestic entities that have not previously been delivered to the Administrative Agent as described and referred to on Schedule IV heretohereto as available, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiib) A favorable opinion of Weil, Gotshal & ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to for the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Initial Lenders may reasonably request and a favorable opinion from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice President and General Counsel of the Borrower, in substantially the form of Exhibit D-2 hereto.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Worldcom Inc)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Agent shall have received a counterpart of this Credit AgreementAgreement duly executed by the Borrower and a counterpart of, the obligation or a copy of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i)signature page to, the initial obligation this Agreement duly executed by all of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Banks and the obligation following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the Initial Issuing Bank to issue first date on which the initial Letter Agent shall have received counterparts of Credit are(or, in each casethe case of any Bank, subject to a copy of a signature page to) this Agreement duly executed by the satisfaction Borrower and all of the following conditions precedentBanks:
(a) The Administrative Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(b) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders Banks to the extent requested in accordance with by any Bank pursuant to Section 2.16(a)2.18.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving each Loan Document, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Guarantor approving the execution and delivery of this AgreementLoan Document.
(iii) A copy certificate of the charter secretary or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each an assistant secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement each Loan Document and the other documents to be delivered by the Borrower hereunder.
(viiv) The following: (A) such certificates representing A certificate of a Responsible Officer stating the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed respective ratings by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect of S&P and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms ▇▇▇▇▇’▇ of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements senior unsecured long-term debt of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, in effect on the Effective Date.
(xiiv) A certificate of a Responsible Officer stating that (A) all “Revolving Credit Commitments” (as defined in the Existing Agreement) of the “Banks” (as defined in the Existing Agreement) have been terminated, (B) either (1) no letter of credit is outstanding thereunder or (2) any such letters of credit are deemed to be Existing Letters of Credit under this Agreement, (C) no “Advances” (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and (D) all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such termination be given at least three (3) Business Days prior to such termination.
(vi) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & . ▇▇▇▇▇ LLP▇▇▇▇▇, counsel to Assistant Secretary and Senior Director for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 C-1 hereto.
(vii) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a Responsible Officer, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable and documented out-of-pocket expenses of the Joint Lead Arrangers shall have been paid (including the reasonable and documented fees and expenses of counsel to the Joint Lead Arrangers for which invoices have been submitted).
(i) The Borrower shall have delivered the documentation, certifications and other information to the Joint Lead Arrangers and the Banks that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date, to the extent such documentation or other information is requested at least ten (10) days prior to the Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification to the Joint Lead Arrangers and the Banks at least three (3) Business Days prior to the Effective Date, to the extent requested at least five (5) Business Days prior to the Effective Date.
(f) The Borrower shall have paid all accrued fees and reasonable and documented out-of-pocket expenses of the Agent (including reasonable and documented fees and expenses of counsel for which invoices have been submitted).
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the satisfaction of the following conditions precedent:
(a) The Administrative the Agent shall have received on behalf of each Lender (or before the Effective Date the followingcertain Lenders, each dated such day (unless otherwise specified)as indicated below) has received, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent, acting reasonably:
(i) The Notes payable to the order a duly executed copy of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).this Agreement;
(ii) Certified copies a certified copy of the resolutions articles and by-laws of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.Borrower;
(iii) A a certified copy of the charter or other constitutive document of each Guarantor articles and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State by-laws of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.Guarantor;
(iv) A a certificate of each good standing under the laws of British Columbia in respect of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the corporate existence of the Borrower or any Guarantor.Borrower;
(v) A a certificate of existence under the laws of State of Delaware in respect of the corporate existence of the Guarantor;
(vi) a certified resolution of the Board of Directors of the Borrower with respect to this Agreement;
(vii) a certified resolution of the Board of Directors of the Guarantor with respect to this Agreement;
(viii) an incumbency certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names name and true signatures of the Borrower’s officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents Loan Documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for which the Borrower and its Subsidiaries, together with is a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.party;
(ix) A DIP Budget reasonably satisfactory an incumbency certificate of the Guarantor certifying the name and true signatures of the Guarantor’s officer authorized to the Administrative Agent and the Initial Lenders.sign this Agreement;
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Borrower and the Guarantor addressed to the Agent and each Lender;
(xi) an opinion of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Guarantor addressed to the Agent and each Lender;
(xii) an opinion of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Canada LLP, counsel to the Loan PartiesLenders, addressed to the Agent and each Lender;
(xiii) all such other agreements, certificates, declarations, opinions and other documents as are reasonably required by the Agent to confirm or establish the completion or satisfaction of the conditions to the Lenders’ obligations hereunder and of which the Borrower is advised in a timely manner; and
(xiv) all documentation and other information regarding the Borrower or the Guarantor requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the AML Legislation, to the extent requested in writing of the Borrower at least 10 days prior to the Effective Date;
(b) provided (A) such information is reasonably requested from the Borrower and/or the Guarantor at least 5 Business Days prior to the Effective Date and (B) the Borrower and/or the Guarantor qualify as a “legal entity customer” under the Beneficial Ownership Regulation, and the Agent and each requesting Lender received, at least three days prior to the Effective Date, in substantially connection with the Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to the Borrower and/or Guarantor;
(c) the Borrower shall have paid to the Agent for the account of the Agent, the co-lead arrangers and the Lenders, as applicable, and in a timely manner, all upfront and arrangement fees required to be paid by the Borrower on or before the Effective Date in connection with this Agreement; and
(d) the Agent shall have received a withdrawal letter from ATB Financial, such withdrawal letter to be in form of Exhibit D-1 heretoand substance satisfactory to the Agent, acting reasonably. Each Lender hereby authorizes the Agent to confirm to the Borrower on the Effective Date that the conditions precedent set forth in this Section 7.1 have been satisfied on or prior to the Effective Date, provided such ▇▇▇▇▇▇ has not advised the Agent in writing prior to such Effective Date that such ▇▇▇▇▇▇ is not satisfied that the Borrower has complied with such conditions precedent.
Appears in 1 contract
Sources: Credit Agreement (Ovintiv Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Original DIP Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit AdvancesAdvances up to the Revolving Credit Availability Amount then in effect, and the obligation of the Initial Swing Line Lender to make the initial Swing Line Advance and obligation of the Initial Issuing Bank Banks to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedent:precedent (other than those conditions specified in Schedule 5.01(n)(iii)):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards Boards of directors Directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement, and of all documents evidencing other necessary constitutive action and, if any, governmental and other third party approvals and consents, if any, with respect to this Agreement and each other Loan Document other than any approval required and granted pursuant to the Interim Order.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date)on or after November 15, if applicable, 2005) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Material Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor; (D) the accuracy in all material respects of the representations and warranties made by the Borrower or such Guarantor in the Loan Documents to which it is or is to be a party as though made on and as of the Effective Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date and to the application of proceeds, if any, therefrom; and (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Effective Date or the application of proceeds, if any, therefrom, that would constitute a Default.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Material Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV V hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders Thirteen Week Forecast detailing the Borrower’s anticipated monthly income statement, balance sheet cash receipts and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget disbursements reasonably satisfactory in form and substance to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xiix) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiix) A favorable opinion of ▇▇▇▇(A) J▇▇▇▇ & ▇▇▇▇▇ LLPDay, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Initial Lenders may reasonably request, (B) Hunton & W▇▇▇▇▇▇▇ LLP, Virginia and Delaware counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto, and addressing such other matters as the Initial Lenders may reasonably request and (C) S▇▇▇▇▇▇▇, Loop & K▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-3 hereto and addressing such other matters as the Initial Lenders may reasonably request .
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Dana Corp)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Amendment is subject to the satisfaction (or waiver) of the following conditions precedent:precedent (the date on which all such conditions precedent are satisfied (or waived), the “Amendment Effective Date”):
(a) The the Administrative Agent shall have received on counterparts to this Amendment executed by the Borrower, the Guarantors (including each Joining Guarantor), each of the Lenders (including the Exiting Lender) and the Administrative Agent;
(b) the Administrative Agent shall have received an officer’s certificate dated the Amendment Effective Date, certifying as to the Organization Documents of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), the resolutions of the governing body of each Loan Party, the good standing, existence or before its equivalent of each Loan Party and of the incumbency (including specimen signatures) of the Responsible Officers of each Loan Party;
(c) the Administrative Agent shall have received opinions of counsel for the Borrower and each Joining Guarantor, dated the Amendment Effective Date and addressed to the followingAdministrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent;
(d) no Event of Default shall have occurred and be continuing or would result after giving effect to this Amendment;
(e) each dated of the representations and warranties contained in Article V of the Credit Agreement (as amended hereby) and the other Loan Documents is true and correct in all material respects on and as of the Amendment Effective Date, except (1) to the extent that such day 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, (unless otherwise specified2) as to any such representation or warranty that is qualified as to “materiality,” “Material Adverse Effect,” or similar language, such representation or warranty shall be true and correct (after giving effect to any qualification therein) in all respects and (3) the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement;
(f) the Borrower shall have paid in full all fees and expenses (including all reasonable and documented fees, expenses and disbursements of counsel to the Administrative Agent, directly to such counsel if requested by the Administrative Agent) due and payable to the Administrative Agent or its affiliates (including all upfront fees and other fees payable to the Administrative Agent for the account of itself and for the account of the Lenders);
(g) receipt by the Administrative Agent and the Lenders of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, the Beneficial Ownership Regulation, that has been requested not less than five Business Days prior to the Amendment Effective Date;
(h) the Administrative Agent shall have received, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The followingAdministrative Agent: (A) such certificates representing searches of UCC filings or equivalents in the Initial Pledged Equity jurisdiction of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blankincorporation or formation, as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the Loan Parties may be able to deliver using their reasonable best effortsAdministrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens, (B) proper financing statements (Form UCC-1 or a comparable form) under searches of ownership of Intellectual Property in the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect appropriate governmental offices and protect the Liens such patent/trademark/copyright and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance other filings as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable Administrative Agent in order to perfect and protect or confirm perfection of the first priority Liens and Administrative Agent’s security interests created under interest in the Intellectual Property Security Agreement in Property; and
(i) such other assurances, certificates, documents, information, or consents as the United States have been taken Administrative Agent, the L/C Issuer, the Swing Line Lender or will be taken in accordance the Required Lenders reasonably may require. Without limiting the generality of the provisions of Section 9.03(c) of the Credit Agreement, for purposes of determining compliance with the terms of the Loan Documents.
(viii) A forecast reasonably conditions specified in this Section 3, each Lender that has signed this Amendment 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 and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting shall have received notice from such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory Lender prior to the Administrative Agent and the Initial LendersAmendment Effective Date specifying its objection thereto.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness obligations of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Loans and the obligation of the Initial Issuing Bank to issue the initial Letter any Letters of Credit are, in hereunder shall not become effective until the date on which each case, subject to the satisfaction of the following conditions precedent:is satisfied (or waived in writing by Lender):
(a) The Administrative Agent Lender shall have received payment of all fees, expenses and other amounts due and payable on or before prior to the Effective Date Closing Date, including reimbursement or payment of all out-of-pocket expenses of Lender and its Affiliates (including reasonable fees, charges and disbursements of counsel to Lender) required to be reimbursed or paid by Borrowers hereunder, under any other Loan Document and under any agreement with Lender;
(b) Lender shall have received the following, each dated such day (unless otherwise specified), to be in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Lender and (except for the Notes) in sufficient copies for each Initial Lenderits counsel:
(i) The Notes payable to the order a counterpart of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).this Agreement signed by or on behalf of each party hereto;
(ii) Certified the Note(s) duly executed by Borrowers; - 55 - 6597425.v16 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v2
(iii) a certificate of the Secretary or Assistant Secretary of each Loan Party attaching and certifying copies of its bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of the boards its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party;
(iv) certified copies of the Borrower and each Guarantor approving the execution and delivery articles or certificate of this Agreement.
(iii) A copy incorporation, certificate of the charter organization or limited partnership, or other constitutive document registered organizational documents of each Guarantor and each amendment theretoLoan Party, certified (together with certificates of good standing or existence, as of a date reasonably near the Effective Date), if applicable, by may be available from the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate organization of each of the Borrower such Loan Party and each Guarantor signed on behalf of the Borrower and other jurisdiction where such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known Loan Party is required to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.qualified to do business as a foreign corporation;
(v) A certificate favorable written opinions of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇▇▇ & , P.C. and ▇▇▇▇▇ LLP▇-▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇-LLP, as local Georgia counsel to Borrowers and Guarantors (together with any local counsel opinions, as applicable), counsel to the Loan Parties, addressed to Lender and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as Lender shall reasonably request;
(vi) a certificate dated the Closing Date and signed by a Responsible Officer, certifying that (A) (1) no Borrower is in substantially default under any supply agreement with any customer, (2) no customer under any supply agreement has a basis for termination of such agreement prior to the form stated maturity date thereof, and (3) Borrowers have satisfied all of Exhibit D-1 hereto.their obligations under each such agreement and under applicable law with respect to the products supplied thereunder, and (B) after giving effect to the funding of the initial Revolving Loans and issuance of any Letters of Credit on the Closing Date, (x) no Default or Event of Default exists, (y) all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct and (z) since the date of the financial statements of PubCo, Parent and Borrowers described in Section 4.4, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(vii) a duly executed Notice of Revolving Borrowing for any initial Revolving Loans;
(viii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(ix) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any applicable law, or by any contractual obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall exist;
(x) copies of (A) the internally prepared monthly financial statements of PubCo and its Subsidiaries on a consolidated and consolidating basis for the calendar month ended February 28, 2021, (B) the audited consolidated and consolidating financial statements for PubCo and its Subsidiaries for the Fiscal Year ended December 31, 2020 and (C) financial projections on a monthly basis for the Fiscal Year ending December 31, 2021, and on an annual basis thereafter through the Fiscal Year ending December 31, 2024; - 56 - 6597425.v16 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v2
(xi) a certificate, dated the Closing Date and signed by the chief financial officer of Borrower Agent, confirming that the Loan Parties are Solvent on a consolidated basis before and after giving effect to the funding of the initial Revolving Loans and the consummation of the transactions contemplated to occur on the Closing Date;
(xii) the Security Agreement, duly executed by Loan Parties, PubCo, Parent, and each of their Domestic Subsidiaries (other than Excluded Subsidiaries), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Security Agreement, as requested by Lender in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by Lender, indicating that there are no prior Liens on any of the Collateral other than Permitted Liens and Liens to be released on the Closing Date, (C) an information certificate, duly completed and executed by the Loan Parties, and (D) duly executed Patent Security Agreements and Trademark Security Agreements and Copyright Security Agreements, as applicable;
(xiii) Deposit Account Control Agreements, duly executed by Lender, each applicable depository bank and the applicable Borrower;
(xiv) with respect to the headquarters location and each location where books or records or Collateral is stored or located, a copy of the underlying lease, as applicable, and a Lien Waiver from the landlord of such leased property or the bailee with respect to any warehouse or other location where such books, records or Collateral are stored or located, which Lien Waivers shall be satisfactory to Lender in all respects;
(xv) the Subordination Agreement (Tri-Party), the Subordination Agreement (Advantage), the Subordination Agreement (Kentucky NMTC), and the Subordination Agreement (Intercompany), and all other Subordination Agreements required to be delivered on the Closing Date, in each case, duly executed by the applicable parties thereto;
Appears in 1 contract
Sources: Revolving Credit Agreement (Danimer Scientific, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to This Agreement shall be effective upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent precedent that the Purchaser shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)Closing Date, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for Purchaser, all of the Notes) in sufficient copies for each Initial Lenderfollowing:
(a) a copy of this Agreement duly executed by each of the parties hereto;
(b) a certificate of a Responsible Officer of the Transferor, dated the Effective Date, certifying (i) The Notes payable to the order names and true signatures of the Non-rollup Revolving Credit Lenders incumbent directors and officers of the Transferor authorized to sign this Agreement, the extent requested Loan Assignments and all other documents to be executed by the Transferor or in accordance with 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 Transferor , a revised certificate meeting the requirements of this Section 2.16(a).
3.1(b) (ii) Certified copies that the copy of the certificate of registration or incorporation, as applicable, of the Transferor is a complete and correct copy and that such certificate of registration or incorporation has not been amended, modified or supplemented and is in full force and effect, (iii) that the copy of the bylaws of the Transferor is a complete and correct copy, and that such bylaws has not been amended, modified or supplemented and is in full force and effect, and (iv) the resolutions of the boards board of directors of each of the Borrower Transferor approving and each Guarantor approving authorizing the execution execution, delivery and delivery performance by the Transferor of this Agreement., the Loan Assignments and all other documents to be executed by the Transferor hereunder or in connection herewith;
(iiic) A copy of the charter or other constitutive document of each Guarantor and each amendment theretoa good standing certificate, certified (dated as of a recent date reasonably near for the Effective Date)Transferor, if applicable, issued by the Secretary of State of the jurisdiction State of its incorporation or organizationDelaware;
(d) financing statements (the "Facility Financing Statements") describing the Sale Portfolio, and (i) naming the Transferor as the case may be"debtor/transferor", thereof the Purchaser as being a true "secured party/buyer" and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed Administrative Agent, on behalf of the Borrower and such GuarantorSecured Parties, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); "secured party/total assignee" and (Cii) the absence of any proceeding known to be pending other similar instruments or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blankdocuments, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) necessary under the UCC of all appropriate jurisdictions that the Initial Lenders may deem necessary or desirable in order any comparable law to perfect the Purchaser's interest and protect the Liens and security interest created or purported to be created under Article IX hereofAdministrative Agent's, covering on behalf of the Collateral described in Article IX hereofSecured Parties, interests, respectively, in each case completed the Sale Portfolio;
(e) financing statements, if any, necessary to release all security interests and other rights of any Person in a manner reasonably satisfactory to the Lender Parties, Sale Portfolio previously granted by the Transferor;
(f) copies of tax and (C) evidence of insurance as judgment lien searches in all jurisdictions reasonably requested by the Initial Lenders.
Purchaser or its assignees and requests for information (vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time a similar UCC search report certified by a party acceptable to time in accordance with the Purchaser and its terms, the “Intellectual Property Security Agreement”assigns), duly executed by each Loan Partydated 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 Transferor (under its present name and any previous name) as debtor and which are filed in the State of Maryland, together with evidence that copies of such financing statements (none of which shall cover any Sale Portfolio);
(g) all actions that instruments in connection with the Initial Lenders transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser and the Administrative Agent, and the Purchaser and the Administrative Agent shall have received from the Transferor copies of all documents (including, without limitation, records of limited liability company proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser and the Administrative Agent may deem have reasonably requested;
(h) any necessary or desirable third party consents and approvals to the closing of the transactions contemplated hereby, in order form and substance satisfactory to perfect and protect the first priority Liens and security interests created under Purchaser;
(i) all fees then required to be paid by the Intellectual Property Security Agreement in the United States have been taken or will be taken Transferor, if any, in accordance with the terms provisions of the Loan Documents.Transaction Documents shall have been paid on the Closing Date; and
(viiij) A forecast reasonably satisfactory to the Administrative Agent Non-Consolidation/True Sale Opinion and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter favorable Opinions of Credit Applications for each Letter Counsel of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially Transferor with respect to the form perfection and enforceability of Exhibit D-1 heretothe security interest hereunder and such other matters as the Purchaser or any assignee thereof may reasonably request.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Monroe Capital Income Plus Corp)
Conditions Precedent to Effectiveness. The effectiveness Subject to Section 3.04 below, the amendment and restatement of this the Existing Credit Agreement, Agreement and the obligation of each Term Lender Bank to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Advances under this Agreement is subject to the satisfaction of condition precedent that the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Agent and (except for the Notes, if any) in sufficient copies for each Initial LenderBank:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(iia) Certified copies of the resolutions of the boards Board of directors Directors, or the Executive Committee thereof, of each of the Borrower and each Guarantor approving of such Borrower's Subsidiaries being a party to any L/C Collateral Document authorizing the execution and delivery of this Agreement, the other Credit Documents to which each Borrower or Subsidiary is a party, each Notice of A Borrowing, each Notice of B Borrowing, and all other documents, in each case evidencing any necessary company action and governmental and other third party approvals and consents, if any, with respect to each such Credit Document.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(vb) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor of such Borrower's Subsidiaries being a party to any L/C Collateral Document certifying (i) that attached thereto is a complete and correct copy of the Certificate of Incorporation and Bylaws, or other applicable formation documents, of such Borrower or Subsidiary together with any amendments thereto, with a copy of a certificate of the Secretary of State of the jurisdiction of incorporation, or organization of such Borrower or Subsidiary, dated reasonably near the Effective Date, certifying that such Borrower or Subsidiary is duly qualified and in good standing in such State, (ii) the absence of any amendments to the Certificate of Incorporation and Bylaws of such Borrower or Subsidiary since the date of the Secretary of State's certificate referred to in this clause (b), (iii) the due incorporation and good standing or valid existence of such Borrower or Subsidiary as an entity organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of such Borrower or Subsidiary, and (iv) the names and true signatures of the officers of the such Borrower and such Guarantor, respectively, or Subsidiary authorized to sign this Agreement Agreement, the other Credit Documents, Notices of A Borrowing, Notices of B Borrowing and the any Notes to be executed by such Borrower and any other documents to be delivered hereunderhereunder by such Borrower.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(viic) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ & ▇▇▇▇▇, General Counsel of TWC, substantially in the form of Exhibit C hereto and as to such other matters as any Bank through the Agent may reasonably request.
(d) An opinion of New York counsel to the Borrowers and Guarantors, substantially in the form of Exhibits D-1 and D-2 hereto and as to such other matters as any Bank through the Agent may reasonably request.
(e) A duly executed and fully effective amendment and restatement of the L/C Agreement and amendment of each of the Progeny Facility documents, other than those automatically amended by virtue of the amendment to this Agreement, each dated the date of this Agreement.
(f) A certificate of an officer of each Borrower stating the respective ratings by each of S&P and ▇▇▇▇▇'▇ of the senior unsecured long-term debt of such Borrower as in effect on the date of this Agreement.
(g) A certificate of an officer of each Borrower and each of its Subsidiaries being a party to any L/C Collateral Document, dated as of the date of execution and delivery by each Borrower of this Agreement (the statements made in each such certificate shall be true on and as of such date), certifying as to (i) the truth, in all material respects, of the representations and warranties contained in this Agreement (in the case of each Borrower only) and the Credit Documents as though made on and as of the date of the execution and delivery of this Agreement other than any such representations or warranties that, by their terms, refer to a specific date other than such date, in which case as of such specific date and (ii) the absence of any event (x) occurring and continuing after giving effect to this Agreement, the ▇▇▇▇▇▇▇ LLPLoan Agreement and the agreements referred to in Section 3.01(e) hereof, and assuming the consummation of the transactions contemplated thereby, or (y) resulting from the execution and delivery of this Agreement and the Credit Documents and the performance of such Borrower or such Subsidiary, as applicable, of its obligations hereunder or under any other Credit Document, that constitutes an Event of Default (other than any Event of Default which may arise as a result of a draw or the probability of a draw under a letter of credit).
(h) Evidence that all agency, trustee, custodial, filing service, legal and other fees and disbursements incurred and invoiced the day immediately prior to the Effective Date, including all fees of the Collateral Trustee, Collateral Agent and the Agent and their respective counsel, have been fully paid by the Borrowers.
(i) A duly executed and effective amendment to the Pledge Agreement, Security Agreement, Collateral Trust Agreement, LLC Guaranty, and Midstream Guaranty each dated the date of this Agreement.
(j) A duly executed and fully effective amendment and restatement of the Holdings Guaranty.
(k) TWC shall have paid in full all accrued fees and expenses of the Agent (including the accrued fees and expenses of counsel to the Loan PartiesAgent and local counsel to the Agent)
(l) Counterparts of this Agreement, duly executed on behalf of each of the Borrowers and the Majority Banks. For purposes of determining compliance with the conditions specified in substantially this Section 3.01, each Bank shall be deemed to have (i) consented to, approved, authorized and accepted and to be satisfied with each document or other matter required under this Section 3.01 (provided that each Bank has received access to a copy of each document set forth in clauses (i) and (j) hereof and the form L/C Agreement) and (ii) authorized the Collateral Agent and the Collateral Trustee to execute the documents set forth in clauses (i) and (j) hereof, as applicable, unless both (x) an officer of Exhibit D-1 heretothe Agent responsible for the transactions contemplated by this Agreement shall have received written notice from such Bank prior to the making of an initial Advance specifying its objection thereto and (y) such Bank shall not have accepted any portion of the fees set forth in Section 2.03(a). The Agent shall give TWC notice when all actions required by Section 3.01 have been satisfied.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation obligations of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Advances hereunder shall not become effective unless on and the obligation as of the Initial Issuing Bank to issue date hereof (the initial Letter of Credit are, in “Closing Date”) each case, subject to the satisfaction of the following conditions precedentis satisfied:
(a) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such day (unless otherwise specified)the Closing Date, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notesnotes described in clause (ii) below) in sufficient copies for each Initial LenderBank:
(i) The Notes Counterparts of this Agreement, duly executed by the Borrower, the Administrative Agent and each Bank.
(ii) A Note payable to the order of the Non-rollup Revolving Credit Lenders each Bank that requests one pursuant to the extent requested in accordance with Section 2.16(a3.04(b).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying certifying:
(A) the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, Documents;
(B) proper financing statements that attached thereto are true and correct copies of: (Form UCC-1 or a comparable form1) under the UCC articles of all jurisdictions that incorporation and by-laws of the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan PartyBorrower, together with evidence that all actions that amendments thereto, as in effect on such date; (2) the Initial Lenders may deem reasonably necessary or desirable in order to perfect resolutions of the Borrower’s board of directors approving the execution, delivery and protect performance by the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms Borrower of the Loan Documents; (3) all documents evidencing other necessary organizational or other similar action, if any, with respect to the execution, delivery and performance of the Loan Documents by the Borrower; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of “Governmental Approval” required to be obtained by the Borrower in connection with the execution, delivery and performance by the Borrower of the Loan Documents; and
(C) that the resolutions referred to in clause (B)(2) above have not been modified, revoked or rescinded and are in full force and effect on such date.
(viiiiv) A forecast reasonably satisfactory certificate signed by the Treasurer or Assistant Treasurer of the Borrower, certifying as to:
(A) the Borrowing Limit as in effect on the Closing Date;
(B) the delivery to each of the Banks, prior to the Administrative Agent Closing Date, of true, correct and complete copies (other than exhibits thereto) of all of the Initial Lenders detailing Disclosure Documents; and
(C) the Borrower’s anticipated monthly income statementabsence of any material adverse change in the business, balance sheet and cash flow statementcondition (financial or otherwise), each on a Consolidated basis for operations, properties or prospects of the Borrower or the Borrower and its Subsidiaries, together with taken as a written set of assumptions supporting such statementswhole, for each month during since December 31, 2011, except as disclosed in the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basisDisclosure Documents.
(ixv) A DIP Budget reasonably satisfactory certificate of a duly authorized officer of the Borrower stating that (i) the representations and warranties of the Borrower contained in Section 6.01 are correct, in all material respects, on and as of the Closing Date before and after giving effect to the Administrative Agent any Advances to be made on such date and the Initial Lendersapplication of the proceeds thereof, and (ii) no event has occurred and is continuing that constitutes an Event of Default or Unmatured Default, or would result from such initial Advances or the application of the proceeds thereof.
(xvi) Audited Consolidated financial statements of Such financial, business and other information regarding the Borrower and its Subsidiaries Subsidiaries, as at December 31, 2008 for the Fiscal Year then endedany Bank shall have reasonably requested.
(xivii) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.Favorable opinions of:
(xiiA) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇. ▇▇▇▇▇ LLP▇▇, counsel to the Loan PartiesAssistant General Counsel of NUSCO, in substantially the form of Exhibit D-1 5.01A hereto, and of such other counsel as relied upon therein, and as to such other matters any Bank may reasonably request; and
(B) King & Spalding LLP, special New York counsel to the Administrative Agent, in substantially the form of Exhibit 5.01B hereto, and as to such other matters as any Bank may reasonably request.
(b) All fees and other amounts payable pursuant to Section 2.02 or pursuant to the Fee Letter shall have been paid (to the extent then due and payable).
(c) The Administrative Agent shall have received such other approvals, opinions and documents as the Majority Lenders, through the Administrative Agent, shall have reasonably requested as to the legality, validity, binding effect or enforceability of this Agreement or the financial condition, operations, properties or prospects of the Borrower and its Subsidiaries, taken as a whole.
Appears in 1 contract
Sources: Credit Agreement (Public Service Co of New Hampshire)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of this Credit Agreementthe first date (the “Closing Date”), on or before July 21, 2009, on which the following conditions precedent have been satisfied (and the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Advances is subject to the satisfaction of the following conditions precedent:) subject to Section 5.01(v):
(a) The Administrative Primary Agent shall have received on or before the Effective Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:reasonably
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a)2.17.
(ii) Certified copies of the resolutions of the boards Boards of directors Directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement, the Loan Documents and of all documents evidencing other necessary constitutive action and, if any, required governmental and the third party approvals and consents, if any (including, without limitation, receipt of each third party approval and consent referred to on Schedule 4.01(f)), with respect to this Agreement and each other Loan Document.
(iii) A copy of the charter or other constitutive document of each Borrower and each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicablerecent date, by the Secretary of State or equivalent governmental authority of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true true, correct and correct complete copy thereof.
(iv) A certificate and/or certificates of each of the Borrower and each Guarantor signed on behalf of the such Borrower and such Guarantor, respectively, by its President President, Chief Executive Officer, Chief Financial Officer or a Vice President Treasurer and its Secretary or any Assistant Secretary, dated the Effective Closing Date (the statements made in which certificate shall be true on and as of the Effective Closing Date), certifying as to (A) the accuracy and completeness of the charter of the such Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) governing documents of the such Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the good standing (or equivalent) of each Borrower and each Guarantor (and attaching a certificate of good standing (or equivalent, if applicable) certified as of a recent date, by the Secretary of State (or equivalent governmental authority) of the jurisdiction of its incorporation or organization, as the case may be (or equivalent governmental authority, as applicable), (D) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the any Borrower or any Guarantor; (E) the accuracy in all material respects of the representations and warranties made by any Borrower or such Guarantor in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings to be made on such date, to the application of proceeds, if any, therefrom, and to the consummation of the transactions contemplated hereby; (F) the absence of any event occurring and continuing, or resulting from any of the Borrowings to be made on the Closing Date or the application of proceeds, if any, therefrom or any other transactions contemplated hereby, that would constitute a Default or Event of Default, and (G) in a certificate executed by the President, Chief Executive Officer or Chief Financial Officer, the Guarantors hereunder as of the Closing Date constitute all of the guarantors required by the Guaranty Coverage Test as of the Closing Date.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.such
(vi) The Primary Agent and the Primary Collateral Agent shall have received this Agreement and each of the Loan Documents (including, without limitation, the Guaranties, the Intercreditor Agreement and each Collateral Document, but other than Secured Hedge Agreements), each executed and delivered by a duly authorized officer of each Loan Party and each other party thereto, which shall be in full force and effect; provided that no guaranty shall be required to be delivered prior to or on the Closing Date that is not required pursuant to the Guaranty Coverage Test, together with the following: :
(A) subject to the Intercreditor Agreement, such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV heretoI to the Security Agreement, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V heretoI to the Security Agreement, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, ,
(B) proper financing statements (Form UCC-1 or a comparable form) and equivalent registration statements under the UCC or the PPSA of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens liens, hypothecs and security interest created or purported to be created under Article IX hereofthe Security Agreement, covering the Collateral described in Article IX hereoftherein, in each case completed in a manner reasonably satisfactory to the Lender PartiesPrimary Collateral Agent, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.and
Appears in 1 contract
Sources: Term Facility Credit Agreement (World Color Press Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, This Agreement shall become effective upon the obligation receipt of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), documents and evidence in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:Agent.
(i) The Notes payable This Agreement, executed and delivered by a duly authorized officer of the Company and each of the other Loan Documents duly executed and delivered by the Company, (ii) for the account of each Lender requesting the same, a Loan Note conforming to the order requirements hereof and executed by a duly authorized officer of the Non-rollup Revolving Credit Lenders to Company, (iii) the extent requested in accordance with Section 2.16(aWarrant Agreement (including the registration rights agreement attached thereto), executed and delivered by a duly authorized officer of Holdings and the Company, and (iv) the Subsidiary Guarantee, executed and delivered by a duly authorized officer of the Subsidiary Guarantor.
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iiib) A copy of resolutions of the charter or other constitutive document Board of Directors of each of Holdings, the Company and the Subsidiary Guarantor approving the terms of, the transactions contemplated by, and the execution of, the Loan Document to which it is a party.
(c) A specimen of the signature of each amendment theretoperson executing any Loan Document or any document or notice in connection with any Loan Document.
(d) A certificate of an authorized signatory of the Company (a) confirming that utilizing the Commitments in full would not breach any limit binding on the Company; (b) certifying that each document specified in this Section 4.1 is correct, certified complete and in full force and effect and has not been amended or superseded prior to the date of this Agreement; and (as c) confirming that the constitutional documents of a date reasonably near Holdings, the Effective Date)Company and the Subsidiary Guarantor have not been amended from those delivered prior to signing of the commitment letter in respect of the Interim Bridge Facility or, if they have been so amended, attaching such amendments, and in any case certifying that such constitutional documents (or, if applicable, by the Secretary of State of the jurisdiction of its incorporation or organizationsuch constitutional documents as amended) are true, as the case may be, thereof as being a true complete and correct copy thereofup to date.
(ive) A certificate of each of Evidence that National Registered Agents, Inc. has accepted its appointment as agent for Holdings, the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor Company and the absence Subsidiary Guarantor for service of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as process in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to New York in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance connection with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the first date (the "Effective Date") on which the Agent shall have received a counterpart of this Credit AgreementAgreement duly executed by the Borrower and a counterpart of, the obligation or a copy of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i)signature page to, the initial obligation this Agreement duly executed by all of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Banks and the obligation following additional conditions precedent shall have been satisfied, except that Section 2.03(a) shall become effective as of the Initial Issuing Bank to issue first date on which the initial Letter Agent shall have received counterparts of Credit are(or, in each casethe case of any Bank, subject to a copy of a signature page to) this Agreement duly executed by the satisfaction Borrower and all of the following conditions precedentBanks:
(a) The Administrative Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(b) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders Banks to the extent requested in accordance with by any Bank pursuant to Section 2.16(a)2.17.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving each Loan Document, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Guarantor approving the execution and delivery of this AgreementLoan Document.
(iii) A copy certificate of the charter secretary or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each an assistant secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement each Loan Document and the other documents to be delivered by the Borrower hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viiiiv) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set certificate of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements an officer of the Borrower stating the respective ratings by each of S&P and its Subsidiaries ▇▇▇▇▇'▇ of the senior unsecured long-term debt of the Borrower as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, in effect on the Effective Date.
(xiiv) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & . ▇▇▇▇▇ LLP▇▇▇▇▇, counsel to Assistant Secretary and Assistant General Counsel for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 C-1 hereto.
(vi) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(vii) A favorable opinion of Linklaters LLP, counsel for the Agent, in form and substance satisfactory to the Agent.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable out-of-pocket expenses of the Co-Lead Arrangers shall have been paid (including the reasonable fees and expenses of counsel to the Co-Lead Arrangers for which invoices have been submitted).
(e) The Borrower shall have paid all accrued fees and reasonable out-of-pocket expenses of the Agent (including reasonable fees and expenses of counsel to the Agent for which invoices have been submitted).
Appears in 1 contract
Sources: Revolving Bridge Facility Credit Agreement (Halliburton Co)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation This Agreement shall become effective on and as of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and first date (the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of “Effective Date”) on which the following conditions precedent:precedent have been satisfied.
(a) The Administrative Agent and the Lenders shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderLenders:
(i) The counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have been received, receipt by the Agent of telecopy, electronic communication or other written confirmation from such party of execution of a counterpart hereof by such party);
(ii) the Notes payable to the order Lenders, respectively, requesting same;
(iii) an opinion or opinions of counsel for the Non-rollup Revolving Credit Lenders Borrower in form and substance reasonably satisfactory to the extent requested in accordance with Section 2.16(a).Lenders;
(iiiv) Certified certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving this Agreement and each Guarantor approving the execution Notes, and delivery of all documents evidencing other necessary corporate or other similar action and governmental approvals, if any, with respect to this Agreement.Agreement and the Notes, as applicable;
(iiiv) A copy a certificate signed by the Chief Financial Officer or the Treasurer of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant SecretaryBorrower, dated the Effective Date Date, to the effect set forth in clauses (the statements made in which certificate shall be true on a) and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational documentb) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.3.02;
(vvi) A a certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the Notes, as applicable, and the other documents to be delivered hereunder; and
(vii) all documents the Lenders may have reasonably requested prior to the date hereof relating to the existence of the Borrower, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto.
(vib) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV heretoLenders shall have received, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Partiesextent requested, all documentation and (C) evidence of insurance as other information reasonably requested by the Initial LendersLenders or the Agent under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Sources: Subordinated Delayed Draw Credit Agreement (Gencorp Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of This Amendment shall not be effective until each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedent:precedent has been fulfilled to the reasonable satisfaction of the Agent (the date such conditions have been satisfactorily fulfilled, the “Fifth Amendment Effective Date”):
(a) The Administrative Agent shall have received on or before a. the Effective Date Agent’s receipt of the following, each dated such day of which shall be originals, telecopies, other electronic image scan transmission (e.g., “pdf” or “tif” via electronic mail) or DocuSign® electronic signature, subject to Section 10.10 of the Credit Agreement (followed promptly by originals) unless otherwise specified)specified or permitted by the Credit Agreement, each properly executed by a Responsible Officer of the signing Loan Party or the Lenders, as applicable, each dated the date hereof (or, in the case of certificates of governmental officials, a recent date before such date) and each in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of i. this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”)Amendment, duly executed by each Loan Partythe Borrower, together with evidence that all actions that the Initial Guarantors, the Agent, and Lenders may deem reasonably necessary or desirable in order to perfect and protect constituting the first priority Liens and security interests created under the Intellectual Property Security Agreement Required Lenders (in the United States have been taken or will be taken in accordance with the terms case of the Loan Documents.
(viii) A forecast reasonably satisfactory amendments set forth in Section 1 of this Amendment other than to the Administrative Agent definition of “Aggregate Commitment”) and each Increasing Lender (in the Initial Lenders detailing case of the Borrower’s anticipated monthly income statementCommitment Increase);
ii. a Note, balance sheet or amended and cash flow statementrestated Note, each on a Consolidated basis for as applicable, executed by the Borrower and its Subsidiaries, together with in favor of each Lender requesting a written set of assumptions supporting such statements, for each month during Note not later than one (1) Business Day prior to the period commencing on the Petition Fifth Amendment Effective Date and ending on reflecting the Stated Maturity Date Commitment of such Lender after giving effect to this Amendment (provided, that any Note being replaced or amended and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory restated shall be returned to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.cancellation);
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender, each LC Issuing Bank and the Swingline Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation Extension of Credit to be made by it hereunder shall become effective on and as of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of first date on which the following conditions precedentprecedent have been satisfied:
(a) The Administrative Agent shall have received on or before the Effective Date such date of effectiveness the following, each dated such day (unless except as noted otherwise specifiedbelow), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for Administrative Agent and, to the Notes) 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 Initial LenderLender and each LC Issuing Bank:
(i) The Notes Promissory notes payable to each Lender that has requested the order of same prior to such date pursuant to Section 2.10(d), duly executed by the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a)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 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.
(iii) Certified copies of the resolutions of the boards board of directors of each of the Borrower approving this Agreement and each Guarantor approving the execution other Loan Documents and of all documents evidencing other necessary corporate action and Governmental Approvals required for the execution, delivery and performance by the Borrower of this Agreement.
(iii) A copy of Agreement and the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereofLoan Documents.
(iv) A certificate of each the Secretary or Assistant Secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, 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 bylaws of the Borrower as in effect on such date.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiiv) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLPin-house counsel for the Borrower, counsel to the Loan Parties, substantially in substantially 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:
(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, 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).
(d) The Administrative Agent shall have received 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 reasonably in advance of the date hereof.
(e) The Administrative Agent shall have received such other approvals or documents as the Administrative Agent, the Swingline Lender, any Lender or any LC Issuing Bank shall have reasonably requested through the Administrative Agent reasonably in advance of the date hereof.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, Agreement and the obligation obligations of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), fund its respective Loans on the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Closing Date shall be subject to the satisfaction of the following conditions precedent:precedent (the first Business Day on which such conditions precedent are so satisfied, the “Closing Date”):
(a) The Agent shall have received duly executed counterparts of this Agreement from the Borrower, each Lender as of the Closing Date and the Agent.
(b) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order A certificate of the NonSecretary, Assistant Secretary or other Responsible Officer of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-rollup Revolving Credit Lenders to laws (or comparable organizational document) of such Loan Party as in effect on the extent requested in accordance with Section 2.16(a).
(ii) Certified copies Closing Date and at all times since the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the boards board of directors (or comparable governing body) of each of the Borrower and each Guarantor approving such Loan Party authorizing the execution and delivery of this Agreement.
the Loan Documents to which such Loan Party is a party and the performance of its obligations thereunder including, in the case of the Borrower, the Borrowing under the Term Facility, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (iiiC) A that attached thereto is a certified copy of the charter certificate or other constitutive document articles of each Guarantor and each amendment incorporation (or comparable organizational document), including all amendments thereto, of such Loan Party as in effect on the Closing Date, certified (as of a recent date reasonably near the Effective Date), if applicable, by the Secretary of State (or comparable entity) of the jurisdiction of its incorporation or organization, as applicable, (D) that attached thereto is a certificate as to the case may begood standing (where such concept is applicable) of such Loan Party as of a recent date, thereof from the Secretary of State (or comparable authority) of the jurisdiction of its incorporation or organization, as being a true applicable, and correct copy thereof(E) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(ivii) A certificate of each another Responsible Officer (or in the event the applicable Loan Party only has one Responsible Officer, any other officer of such Loan Party) as to the incumbency and specimen signature of the Borrower and each Guarantor signed on behalf of the Borrower and such GuarantorSecretary, respectively, by its President or a Vice President and its Assistant Secretary or any Assistant Secretary, dated Responsible Officer executing the Effective Date certificate pursuant to clause (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (Ai) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantorabove.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiiiii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower and the other Loan Parties, dated as of the Closing Date, addressed to the Administrative Agent, the Collateral Agent and each Lender in form and substance reasonably satisfactory to the Agent and covering such other matters relating to the Loan PartiesDocuments and the Transactions as the Agent shall reasonably request.
(iv) Any Notes, to the extent requested at least three (3) Business Days prior to the Closing Date by any Lender pursuant to Section 2.16.
(c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the form attached hereto as Exhibit B.
(d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower in the form attached hereto as Exhibit E.
(e) All fees required to be paid by the Borrower hereunder or as separately agreed by the Borrower and any of the Arrangers or the Lenders, in substantially each case on or prior to the form Closing Date, and, to the extent invoiced at least three (3) Business Days prior to the Closing Date, all invoiced expenses of Exhibit D-1 heretothe Agent and the Arrangers relating hereto (including those of counsel to the Agent and the Arrangers), shall have in each case been paid (which amounts may be offset against the proceeds of the Loans on the Closing Date).
Appears in 1 contract
Sources: Credit Agreement (Cloudera, Inc.)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect occur on the date on which the Lender shall have received each of the following, each dated the date hereof unless otherwise indicated or agreed to by the Lender, in form and substance satisfactory to the Lender:
(a) this Agreement, duly executed and delivered by the Borrower and Sonus Corp.;
(b) the Security Agreement, duly executed and delivered by the Borrower, together with evidence satisfactory to the Lender of the effectiveness and perfection of the Liens contemplated thereby;
(c) the Note, duly executed and delivered by the Borrower for the account of the Lender;
(d) a copy of the Sales Agreement, duly executed and delivered by the Borrower and the other parties thereto;
(e) the Collateral Account Agreement, duly executed and delivered by the Borrower and the other parties thereto;
(f) the Subsidiary Guaranty and the Subsidiary Security Agreement, duly executed and delivered by the Initial Acquisition Subsidiary and the other parties thereto, together with evidence satisfactory to the Lender of the effectiveness and perfection of the Liens contemplated thereby;
(g) a Certificate of the Secretary of each Obligor as to (i) no amendments to the certificate of incorporation or bylaws since the date of the last amendment; (ii) no liquidation or dissolution proceedings; (iii) attached copy of certificate of incorporation and resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate)directors; and (Civ) the absence incumbency and signatures of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.officers; and
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (Ah) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV heretoadditional documents, accompanied by undated stock powers, duly executed in blank, information and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, materials as the Loan Parties Lender may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lendersrequest.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the first date (the "Effective Date") on which the Agent shall have received a counterpart of this Credit AgreementAgreement duly executed by the Borrower and a counterpart of, the obligation or a copy of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i)signature page to, the initial obligation this Agreement duly executed by all of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Banks and the obligation following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the Initial Issuing Bank to issue first date on which the initial Letter Agent shall have received counterparts of Credit are(or, in each casethe case of any Bank, subject to a copy of a signature page to) this Agreement duly executed by the satisfaction Borrower and all of the following conditions precedentBanks:
(a) The Administrative Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(b) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders Banks to the extent requested in accordance with by any Bank pursuant to Section 2.16(a)2.18.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving each Loan Document, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Guarantor approving the execution and delivery of this AgreementLoan Document.
(iii) A copy certificate of the charter secretary or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each an assistant secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement each Loan Document and the other documents to be delivered by the Borrower hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viiiiv) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set certificate of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements an officer of the Borrower stating the respective ratings by each of S&P and its Subsidiaries Moody's of the s▇▇▇▇▇ ▇nsecured long-term debt of the Borrower as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, in effect on the Effective Date.
(xiiv) [Intentionally deleted.]
(vi) A favorable opinion of Bruce A. Metzing▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to etary and Assistant General Counsel for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 C-1 hereto.
(vii) A favorable opinion of Baker Botts LLP, ▇▇▇▇s▇▇ ▇▇r the Borrower, in substantially the form of Exhibit C-2 hereto.
(viii) A favorable opinion of Bracewell & Giul▇▇▇▇ ▇▇▇, co▇▇▇▇▇ ▇▇r the Agent, in form and substance satisfactory to the Agent.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable out-of-pocket expenses of the Arranger shall have been paid (including the reasonable fees and expenses of counsel to the Arranger for which invoices have been submitted).
(e) 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. (a) The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the prior or concurrent satisfaction of the following conditions precedent:
(a) The and the Administrative Agent shall have received on or before receive for the Effective Date account of each Lender party to the Agreement the following, each dated such day (each, unless otherwise specified)noted, dated the Effective Date, and in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Initial LenderArranger:
(i) The Notes payable Copies of resolutions of the Board of Directors of the Borrower (or its Executive Committee, together with evidence of the authority of the Executive Committee) approving this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, certified as of a recent date prior to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).Effective Date;
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder.;
(iii) Certified copies of the Borrower's Certificate of Incorporation, together with good standing certificates from the state of Delaware and the State of Minnesota, each to be dated a recent date prior to the Effective Date;
(iv) Copies of the Borrower's Bylaws, certified as of the Effective Date by their respective Secretary or an Assistant Secretary;
(v) Executed originals of this Agreement and the other documents to be delivered by the Borrower hereunder;
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President and General Counsel to the Borrower, substantially in the form of Exhibit F hereto;
(vii) A favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel to for the Loan PartiesAgents, substantially in substantially the form of Exhibit D-1 G hereto;
(viii) A certificate of an authorized officer of the Borrower to the effect that since October 28, 2000, there has been no material adverse change in the business, condition (financial or otherwise), results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole;
(ix) A certificate of an authorized officer of the Borrower, in form and substance satisfactory to the Administrative Agent, to the effect that (i) the representations and warranties in Section 4.01 are correct on and as of the Effective Date, to the same extent as though made on and as of the Effective Date, except to the extent that any such representation or warranty expressly relates only to an earlier date, in which case they were correct as of such earlier date; (b) such Borrower has performed in all material respects all agreements and satisfied all conditions which this Agreement provides shall be performed and satisfied by it on or before the Effective Date; and (c) no event has occurred and is continuing, or would result from the Borrowings made on and as of the Effective Date or from the application of the proceeds from such Borrowings, which constitutes an Event of Default or a Potential Event of Default;
(x) Payment of up front fees to the Lenders, as agreed by and among the Arranger, Lenders and the Borrower;
(xi) Evidence of (i) the contemporaneous repayment of any indebtedness of the Borrower under the Existing Credit Agreement (including borrowings and accrued interest), (ii) the contemporaneous payment of fees payable, if any, by the Borrower under the Existing Credit Agreement and (iii) the contemporaneous termination of the Existing Credit Agreement on the Effective Date.
(b) The Administrative Agent shall have received such other approvals, opinions or documents as the Requisite Lenders through the Administrative Agent may reasonably request (which request shall be made in sufficient time to allow the Borrower to comply therewith).
Appears in 1 contract
Sources: Revolving Credit Agreement (Hormel Foods Corp /De/)
Conditions Precedent to Effectiveness. (a) The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the prior or concurrent satisfaction of the following conditions precedent:
(a) The and the Administrative Agent shall have received on or before for the Effective Date account of each Bank the following, each dated such day (each, unless otherwise specified)noted, dated the Effective Date, and in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Initial LenderArranger:
(i) The Notes payable Copies of resolutions of the Board of Directors of the Company (or its Executive Committee, together with evidence of the authority of the Executive Committee) approving this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, certified as of a recent date prior to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a)Effective Date.
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor Company certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Company authorized to sign this Agreement and the other documents to be delivered by the Company hereunder.
(viiii) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms Certified copies of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its SubsidiariesCompany's Certificate of Incorporation, together with a written set good standing certificate from the state of assumptions supporting such statementsMichigan, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit dated a recent date prior to be issued, on the Effective Date.;
(xiiiv) A favorable opinion Copies of the Company's Bylaws, certified as of the Effective Date by its Secretary or an Assistant Secretary;
(v) Executed originals of this Agreement and the other documents to be delivered by the Company hereunder;
(vi) Favorable opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ , Esq., Assistant General Counsel of the Company and Winston & ▇▇▇▇▇▇, counsel to the Company, substantially in the form of Exhibits C-1 and C-2 hereto;
(vii) A favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel to for the Loan PartiesAgents, substantially in substantially the form of Exhibit D-1 D hereto;
(viii) A certificate of an authorized officer of the Company to the effect that since February 25, 2000, there has been no material adverse change in the operations, business or financial or other condition or properties of the Company and its Subsidiaries, taken as a whole;
(ix) Evidence of (i) the contemporaneous repayment of any indebtedness of the Company under the Existing Credit Agreement (including borrowings and accrued interest), (ii) the contemporaneous payment of fees payable, if any, by the Company under the Existing Credit Agreement and (iii) the contemporaneous termination of the Existing Credit Agreement on the Effective Date; and
(x) Evidence of (i) the contemporaneous repayment of any indebtedness of Steelcase Strafor SA under the Existing Euro Facilities (including borrowings and accrued interest), (ii) the contemporaneous payment of fees payable, if any, by Steelcase Strafor SA under the Existing Euro Facilities and (iii) the contemporaneous termination of the Existing Euro Facilities on the Effective Date.
(b) The Agents shall have received such other approvals, opinions or documents as the Requisite Lenders through the Agents may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Steelcase Inc)
Conditions Precedent to Effectiveness. The effectiveness of this Credit AgreementThis Amended Agreement shall not become effective, the obligation of each Term and no Lender shall be obligated to make a Term Advance pursuant to Section 2.01(a)(i)any Advance, the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in until each case, subject to the satisfaction of the following conditions precedentprecedent is satisfied:
(ai) The Administrative Agent shall have received counterparts of this Amended Agreement duly executed by each of the parties listed on the signature pages hereof (or before in the Effective Date case of any party as to which such an executed counterpart shall not have been received, the following, each dated Administrative Agent shall have received evidence satisfactory to it of the execution and delivery of a counterpart hereof by such day party).
(unless otherwise specified), ii) The Administrative Agent shall have received the following in form and substance reasonably satisfactory to the Initial Lenders Administrative Agent (unless otherwise specified) and (except for the Committed Notes) in sufficient copies for each Initial Lender:
(iA) The Committed Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a)Lenders.
(iiB) Certified copies of the resolutions of the boards Board of directors Directors of each of Loan Party approving the Borrower transactions contemplated by the Loan Documents and each Guarantor approving Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with transactions contemplated by the execution Loan Documents and delivery of this Agreementeach Loan Document to which it is or is to be a party.
(iiiC) A copy of a certificate of the charter Secretary of State or other constitutive document appropriate official of the jurisdiction of incorporation of (x) each Guarantor of ACE INA and ACE Guaranty, dated reasonably near the date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of its charter and each amendment theretothereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to its charter on file in such Secretary's office, certified (as 2) it has paid all franchise taxes to the date of a date reasonably near such certificate and (C) it is duly incorporated and in good standing or presently subsisting under the Effective Date), if applicable, by laws of the Secretary of State of the jurisdiction of its incorporation and (y) each other Loan Party, dated reasonably near the Initial Extension of Credit, certifying as to the good standing (or organization, as the case may be, thereof as being a true and correct copy thereofexistence) of such Loan Party.
(ivD) A certificate of each of the Borrower and each Guarantor Loan Party, signed on behalf of the Borrower and such Guarantor, respectively, Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date date of the Initial Extension of Credit (the statements made in which certificate shall be true on and as of the Effective Datedate of the Initial Extension of Credit), certifying as to (A1) in the accuracy case of each of ACE INA and completeness of the charter of the Borrower or such Guarantor and ACE Guaranty, the absence of any changes thereto; amendments to the charter of such Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(ii)(C), (B2) the accuracy a true and completeness correct copy of the bylaws (in the case of ACE INA and ACE Guaranty) or equivalent organizational documentthe constitutional documents (in the case of each other Loan Party) of the Borrower or such Guarantor Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii3.01(ii)(B) were adopted and on the date of the Initial Extension of Credit, (3) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any changes thereto proceeding for the dissolution or liquidation of such Loan Party, (a copy 4) the truth of which shall be attached to such certificate); the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (C5) the absence of any proceeding known to be pending event occurring and continuing, or threatened in writing for resulting from the dissolutionInitial Extension of Credit, liquidation or other termination of the existence of the Borrower or any Guarantorthat constitutes a Default.
(vE) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor Loan Party certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Loan Party authorized to sign this Agreement each Loan Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiiF) A favorable opinion of (1) ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Parent, in substantially the form of Exhibit D-1 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, (2) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ LLP▇, New York counsel to for the Loan Parties, in substantially the form of Exhibit D-1 D-2 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request, (3) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel for ACE Bermuda and Tempest, in substantially the form of Exhibit D-3 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request and (4) ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Maryland counsel for ACE Guaranty, in substantially the form of Exhibit D-4 hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(iii) There shall have occurred no material adverse change since December 31, 1999 in the business, financial condition, operations or properties of the Parent and its Subsidiaries, taken as a whole.
(iv) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (x) could be reasonably expected to have a Material Adverse Effect or (y) would reasonably be expected to materially adversely affect the legality, validity or enforceability of any Loan Document or the other transactions contemplated by the Loan Documents.
(v) The Borrowers shall have paid all accrued fees of the Agents and the Lenders and all accrued expenses of the Agents (including the accrued fees and expenses of counsel to the Administrative Agent and local counsel on behalf of all of the Lenders), in each case to the extent then due and payable. On the Effective Date the Existing Agreement will be automatically amended and restated in its entirety to read as set forth in this Amended Agreement. On and after the Effective Date the rights and obligations of the parties hereto shall be governed by this Amended Agreement; provided the rights and obligations of the parties hereto with respect to the period prior to the Effective Date shall continue to be governed by the provisions of the Existing Agreement. On the Effective Date, any Lender whose WC Commitment is changed to zero shall cease to be a Lender party to this Agreement and all accrued fees and other amounts payable under this Agreement for the account of such Lender shall be due and payable on such date; provided that the provisions of Section 2.10, 2.12 and 9.04 of this Agreement shall continue to inure to the benefit of each such Lender. The Notes delivered to each Lender under the Existing Agreement shall be canceled and Notes under this Amended Agreement shall be given in substitution therefor. Each Lender shall promptly after the Effective Date deliver to the Borrowers for cancellation the Notes delivered to such Lender under the Existing Agreement. The Agent shall promptly notify the Borrowers and each Lender of the effectiveness of the Amended Agreement, and such notice shall be conclusive and binding on all parties hereto. The Banks that are parties to the Existing 2,050 Million Credit Facility, comprising the "Required Banks" as defined therein, and ACE INA (the "Borrower" as defined under the Existing 2,050 Million Credit Facility), Parent, ACE Bermuda and Tempest (Parent, ACE Bermuda and Tempest, the "Guarantors" as defined under the Existing 2,050 Million Credit Facility, and along with ACE INA, the "2,050 Million Obligors") agree that the commitments under the Existing 2,050 Million Credit Facility shall terminate in their entirety simultaneously with and subject to the effectiveness of this Agreement and that the 2,050 Million Obligors shall be obligated to pay on the Effective Date all principal amounts outstanding thereunder, together with all accrued interest and fees and all other amounts then payable thereunder to but excluding the Effective Date.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Ace LTD)
Conditions Precedent to Effectiveness. The effectiveness This Waiver shall become effective solely upon the satisfaction (or waiver in accordance with the terms and conditions of this Section 10.5 of the Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction ) of the following conditions precedent:precedent (upon satisfaction of such conditions, such date being referred to in this Waiver as the “Effective Date”):
(a) The Administrative Agent shall have received on or before a counterpart signature page of this Waiver duly executed by each of the Credit Parties and the Lenders party hereto constituting all of the Lenders other than Non-Voting Roll-Up Lenders solely with respect to Non-Voting Roll-Up Loans;
(b) as of the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory after giving effect to the Initial Lenders (unless otherwise specified) Limited and (except for Specific Waivers, the Notes) representations and warranties contained in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of Credit Agreement and in the Non-rollup Revolving other Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a Documents shall be true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true all material respects on and as of the Effective Date)Date to the same extent as though made on and as of that date, certifying except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(Ac) as of the Effective Date and after giving effect to the Limited and Specific Waivers, no Default or Event of Default shall have occurred and be continuing or would immediately result from the Limited and Specific Waivers;
(d) the accuracy and completeness consummation of the charter of the Borrower or such Guarantor and the absence of any changes theretoOpCo Sale; and
(Be) the accuracy payment by Borrower of all unpaid interest, expenses, fees, premiums (including the Repayment Premium, whether or not then due and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable formpayable) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial LendersCredit Agreement.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the satisfaction prior fulfillment of each of the following conditions precedentconditions:
(a) The Administrative Agent or the Lenders, as appropriate, shall have received on or before the Effective Date each of the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Initial LenderLenders:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).duly executed Notes;
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.duly executed Security Documents;
(iii) A opinion of counsel to the Borrowers, addressed to each Lender and the Administrative Agent and satisfactory to the Administrative Agent and its special counsel, dated the Agreement Date;
(iv) a duly executed Request for Advance for any Advance of the Loans requested on the Agreement Date;
(v) a loan certificate for each of Charter LP, Charter-II LP, Charter-III LP and PCTV, each substantially the form attached hereto as Exhibit O, including a certificate of incumbency with respect to each Authorized Signatory, together with appropriate attachments which shall include the following items: (A) a copy of the charter Certificate of Limited Partnership or other constitutive document Articles of each Guarantor and each amendment theretoIncorporation of the applicable Borrower, certified to be true, complete and correct by the Secretary of State for the state of the applicable Borrower's formation, (B) a true, complete and correct copy of the Partnership Agreement or Bylaws of the applicable Borrower, as in effect on the date hereof, (C) a copy of a date reasonably near the Effective Date)certificate or articles of incorporation of the applicable General Partner, if applicablecertified to be true, complete and correct by the Secretary of State of the jurisdiction state of its incorporation or organizationincorporation, as the case may be(D) a true, thereof as being a true complete and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf by-laws of the Borrower and General Partner of such GuarantorBorrower, respectivelyif any, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which hereof, (E) a true, complete and correct copy of the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower its General Partner, if any, authorizing it to execute, deliver and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign perform this Agreement and the other documents Loan Documents to which the applicable Borrower is party and, if applicable, the Assignment of General Partner Interests on its own behalf, (F) certificates of good standing from appropriate jurisdictions for the Borrower, (G) to the best of the applicable Borrower's knowledge, a true and correct list of all Licenses granted to the applicable Borrower, together with all amendments thereto through the date hereof and certified to be delivered hereunder.in full force and effect, copies of which shall have been previously provided to the Administrative Agent and its special counsel, (H) to the best of the applicable Borrower's knowledge, a true and correct list of all Pole Agreements granted to the applicable Borrower, together with all amendments thereto through the date hereof and certified to be in full force and effect, copies of which shall have been previously provided to the Administrative Agent and its special counsel, (I) a true, complete and correct copy of the Management Agreement for such Borrower, (J) a true, complete and correct description of all Liens of record on the Agreement Date with respect to the assets of the applicable Borrower, and (K) a true, complete and correct description of all litigation existing or, to the best of the applicable Borrower's knowledge, threatened against the applicable Borrower, which, if determined adversely to such Borrower could be reasonably likely to have a Materially Adverse Effect;
(vi) The followingthe loan certificate of each Limited Partner, in substantially the form attached hereto as Exhibit P, including a certificate of incumbency for the general partner of the applicable Limited Partner and a certified copy of the partnership agreement for the applicable Limited Partner;
(vii) a loan certificate of CCP-III, Inc., in substantially the form of Exhibit Q, attached hereto including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) such certificates representing a true, complete and correct copy of the Initial Pledged Equity Certificate of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing Formation or the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blankCertificate or Articles of Incorporation, as applicable, of such Person as in effect on the Loan Parties may be able to deliver using their reasonable best effortsAgreement Date, (B) proper financing statements (Form UCC-1 a true, complete and correct copy of the Operating Agreement or a comparable form) under the UCC By-laws, as applicable of all jurisdictions that such Person as in effect on the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereofAgreement Date, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence certificates of insurance as reasonably requested good standing for such Person issued by the Initial Lenders.
Secretary of State or similar state official for the state of formation or incorporation, as applicable of such Person and for each state in which such Person is required to qualify to do business (viiD) An intellectual property security agreement (as amendeda true, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect complete and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms correct copy of the resolutions of such Person (or another appropriate Person) authorizing such Person to execute, deliver and perform the Loan Documents.Documents to which it is a party and (E) a true, complete and correct copy of any shareholders' agreements or voting agreements in effect with respect to the ownership interests of such Person;
(viii) A forecast a duly executed Certificate of Financial Condition;
(ix) copies of insurance binders or certificates covering the assets of the Borrowers, and otherwise meeting the requirements of Section 5.5 hereof;
(x) copies of the most recent quarterly financial statements of each Borrower on a consolidated basis with its Subsidiaries; and
(xi) all such other documents as the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested.
(b) The Licenses shall be in form and substance satisfactory to the Administrative Agent and the Lenders and the Lenders shall have received evidence reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing that all Necessary Authorizations, including, without limitation, all necessary consents to the Borrower’s anticipated monthly income statementclosing of this Agreement, balance sheet and cash flow statement, each on a Consolidated basis for from the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization grantors of the Commitments on Licenses, have been obtained or made, are in full force and effect and are not subject to any pending or threatened reversal or cancellation, and the Administrative Agent and the Lenders shall have received a monthly basiscertificate of an Authorized Signatory so stating.
(ixc) A DIP Budget reasonably satisfactory The Borrowers shall certify to the Administrative Agent and the Initial LendersLenders that each of the representations and warranties in Article 4 hereof are true and correct in all material respects as of the Agreement Date, and that no Default or Event of Default then exists or is continuing and that no material adverse changes have occurred in the financial condition, business operations, prospects or properties of the Borrowers on a combined basis, and on a consolidated basis with respect to each Borrower and its respective Subsidiaries, as of the most recent fiscal year end or fiscal quarter end.
(xd) Audited Consolidated financial statements of The Administrative Agent and the Borrower Lenders shall have received such fees as are due and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing payable to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, them on the Effective Agreement Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Sources: Loan Agreement (Charter Communications Southeast Holdings Lp)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation amendment and restatement of the Non-rollup Revolving Existing Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day of which shall be originals or e-mailed copies (unless otherwise specifiedfollowed promptly by originals), 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 Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAdministrative Agent:
(i) The Notes payable to executed counterparts of (x) this Agreement and (y) the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).Company Guaranty;
(ii) Certified copies of Notes executed by the resolutions of the boards of directors Borrowers in favor of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.Lender requesting Notes;
(iii) A copy certificates of the charter resolutions or other constitutive document equivalent action and incumbency certificates of Responsible Officers of each Guarantor Loan Party evidencing the identity, authority and capacity of each amendment thereto, certified (Responsible Officer thereof authorized to act as of a date reasonably near Responsible Officer in connection with this Agreement and the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being other Loan Documents to which such Loan Party is a true and correct copy thereof.party;
(iv) A documents and certifications evidencing that each Loan Party is validly existing and in good standing and qualified to engage in business in its jurisdiction of organization;
(v) a certificate of each signed by a Responsible Officer of the Borrower and each Guarantor signed on behalf Company certifying (A) as to the satisfaction of the Borrower conditions set forth in Section 4.01(b) and such Guarantor, respectively, by its President or a Vice President (c) and its Secretary or any Assistant Secretary, dated (B) setting forth the Effective Date (the statements made in which certificate shall be true on and Company’s Debt Rating as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.and
(vi) The following: opinions of (Ai) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Senior Vice President, Chief Legal Officer and Secretary of the Company, (ii) Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel to the Loan PartiesParties and (iii) Swiss counsel to the Designated Borrower, in substantially each case in form and substance reasonably satisfactory to the form Administrative Agent.
(b) All of Exhibit D-1 heretothe representations and warranties of the Loan Parties contained in Article V of this Agreement and in each other Loan Document, shall be true and correct in all material respects except that all representations and warranties that are qualified by materiality are true and correct in all respects, in each case, on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case shall have been true and correct in all material respects (or true and correct in all respects for any such representations or warranties that are qualified by materiality) as of such earlier date.
(c) No Default exists, or would result from, the occurrence of the Effective Date.
(d) 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.
(e) Upon the reasonable request of any Lender made at least 10 Business Days prior to the Effective Date (i) 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) 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 notice from such Lender prior to the proposed Effective Date specifying its objection thereto. The Administrative Agent shall notify the Company and the Lenders of the occurrence of the Effective Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Agreement and the obligation of Lender to make any Loans to Borrower or to cause the Initial Issuing Bank to issue the initial Letter any Letters of Credit are, in each case, accordance with the terms hereof are subject to the satisfaction condition precedent that Borrower deliver to Lender each of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), of which shall be in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(ia) The Notes counterparts of this Agreement and all other Loan Documents executed by the parties hereto;
(b) the Revolving Note executed by Borrower, payable to Lender and complying with the order terms of Section 2.12;
(c) the Guaranty executed by each Guarantor;
(d) an opinion of counsel to the Loan Parties, and addressed to Lender in substantially the form of Exhibit F;
(e) a certified copy of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).Bylaws of Borrower;
(iif) Certified copies a certificate of incumbency signed by the resolutions Secretary or Assistant Secretary of the boards of directors of Borrower with respect to each of the officers of Borrower authorized to execute and each Guarantor approving deliver the execution and delivery of this Agreement.Loan Documents to which Borrower is a party;
(iiig) A copy certified copies (certified by the Secretary or Assistant Secretary of Borrower) of all action taken by Borrower's Board of Directors to authorize the execution, delivery and performance of the charter Loan Documents to which it is a party;
(h) certified copy (certified by the Secretary or Assistant Secretary of Borrower) of the Amended and Restated Declaration of Trust of Borrower as filed in Harris County, Texas;
(▇) the articles of incorporation, articles of organization, certificate of limited partnership or other constitutive document comparable organizational instrument (if any) of each Guarantor and each amendment thereto, certified (as of a recent date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction State of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.formation of such Guarantor;
(ivj) A a Certificate of Good Standing or certificate of similar meaning with respect to each Guarantor issued as of a recent date by the Secretary of State of the Borrower and State of formation of each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor 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 each state in which each such Guarantor is required to be so qualified;
(k) a certificate of incumbency signed by the absence of any changes thereto; (B) the accuracy and completeness of the bylaws Secretary or Assistant Secretary (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons other individual performing similar functions) of such Person referred each Guarantor with respect to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination each of the existence officers of such Guarantor authorized to execute and deliver the Borrower or any Guarantor.Loan Documents to which such Guarantor is a party;
(vl) A certificate of copies certified by the Secretary or an Assistant Secretary of each Guarantor (or other individual performing similar functions) of (i) the Borrower and each Guarantor certifying the names and true signatures by-laws of the officers of the Borrower and such Guarantor, respectivelyif a corporation, authorized to sign this Agreement and the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing comparable document in the Initial Pledged Equity case of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC any other form of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, legal entity and (Cii) evidence of insurance as reasonably requested all corporate, partnership, member or other necessary action taken by such Guarantor to authorize the Initial Lenders.
(vii) An intellectual property security agreement (as amendedexecution, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect delivery and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms performance of the Loan Documents.Documents to which it is a party;
(viiim) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization an Unencumbered Pool Certificate calculated as of the Commitments on a monthly basis.date hereof;
(ixn) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.fees then due under Section 3.1;
(xo) Audited Consolidated financial statements of the Borrower such other documents and its Subsidiaries instruments as at December 31, 2008 for the Fiscal Year then endedLender may reasonably request.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (Amreit)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the This Agreement shall become effective upon satisfaction of the following conditions precedent:precedent (the “Closing Date”):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAdministrative Agent:
(i) The Notes payable to the order An executed counterpart of this Agreement signed on behalf of the Non-rollup Revolving Credit Lenders to Company, the extent requested in accordance with Section 2.16(a).Guarantors, the Administrative Agent and each Lender;
(ii) Certified copies To the extent requested pursuant to Section 2.11(a), a duly executed Note of the resolutions of Company, for the boards of directors account of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.requesting Lender;
(iii) A copy Certified copies of the charter UCC, tax and judgment lien searches, or other constitutive document of equivalent reports or searches, each Guarantor and each amendment thereto, certified (as of a recent date reasonably near listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name certain identified Loan Parties as debtor and that are filed in those state and county jurisdictions in which such Loan Party is organized or maintains its principal place of business, none of which encumber the Effective Date), if applicable, Collateral covered or intended to be covered by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.Collateral Documents (other than Permitted Liens),
(iv) A certificate of each the Secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), Company certifying as to (A) the accuracy and completeness copies attached thereto of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board Board of directors Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (or persons performing similar functionsB) copies attached thereto of such Person referred to in Section 3.01(a)(ii) were adopted the Certificate of Incorporation and by-laws of the absence of any changes thereto (a copy of which shall be attached to such certificate); Company and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder.;
(v) A certificate from the relevant Secretary of State dated a date reasonably close to the date hereofClosing Date as to the good standing of and organizational documents filed by each Loan Party;
(vi) The following: A certificate of a duly authorized officer of the Company, dated the Closing Date, certifying that as of such date, (A) such certificates representing the Initial Pledged Equity representations and warranties contained in Section 6.01 are correct in all material respects on and as of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best effortsClosing Date, (B) proper financing statements (Form UCC-1 no Default or a comparable form) under Event of Default as of the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect date thereof has occurred and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, is continuing and (C) evidence from the Chief Financial Officer, the Solvency of insurance as reasonably requested by the Initial Lenders.Company on a consolidated basis both before and after giving effect to the transactions occurring on such date;
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in a form reasonably satisfactory to the Administrative Agent;
(viii) Opinions of the local counsel to the Borrower identified on Schedule 5.01(a)(viii), in each case, in a form reasonably satisfactory to the Administrative Agent;
(ix) A Perfection Certificate, duly executed by each of the Loan Parties;
(x) The Security Agreement, duly executed by each of the Loan Parties;
(xi) The Pledge Agreement, duly executed by each Specified Pledgor; and
(xii) Subject to Section 7.11(b), delivery of all documents, instruments and certificates and evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary or desirable in order to create and perfect Liens on the Collateral has been taken.
(b) The Company shall have paid all reasonable accrued fees and expenses of the Original Arrangers, the Administrative Agent and the Lenders which are due and payable on the Closing Date to the extent invoiced (including fees set forth in the Fee Letter and the reasonable and documented fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Original Arrangers and the Administrative Agent);
(c) There shall have occurred no material adverse change in the business, financial condition, results of operations or properties of the Company and its Subsidiaries, taken as a whole, since December 31, 2016;
(d) There shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the Loan Partiesknowledge of the Company, threatened, that could reasonably be expected to have a Material Adverse Effect;
(e) Receipt of such documentation as may be required by any Lender, any L/C Issuer or the Administrative Agent in substantially order to comply with Section 326 of the form USA PATRIOT Act or necessary for any Lender, any L/C Issuer or the Administrative Agent to verify the identity of Exhibit D-1 heretoany Borrower as required by Section 326 of the USA PATRIOT Act, as requested through the Administrative Agent at least 5 days in advance of the Closing Date; and
(f) The Administrative Agent shall have received a Borrowing Base Report as of August 31, 2017. Upon giving effect to the initial funding of Revolving Loans and issuance of Letters of Credit, and the payment by the Borrower of all fees and expenses incurred in connection herewith, Availability shall be at least $250,000,000. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified above in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved and accepted, and to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date, as notified by the Administrative Agent to the Lenders, specifying its objection thereto. The Administrative Agent shall promptly notify the Lenders of the occurrence of the Closing Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness provisions of this Credit AgreementAgreement shall become effective on the first day on or before March 26, 2004 (the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction “Effective Date”) on which all of the following conditions precedentprecedent have been satisfied:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Initial Lenderthe Banks:
(i) The Notes payable Administrative Agent (or its counsel) shall have received from each party hereto either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence satisfactory to the order Administrative Agent (which may include telecopy transmission of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) Certified copies To the extent requested pursuant to Section 2.19(e), a duly executed Note of the resolutions of Company, for the boards of directors account of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.requesting Bank;
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower Company certifying (A) copies attached thereto of the resolutions of the Board of Directors of the Company authorizing and each Guarantor certifying empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (B) copies attached thereto of the Certificate of Incorporation and by-laws of the Company, and (C) the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder.;
(viiv) The following: A certificate of a duly authorized officer of the Company, dated the Effective Date, certifying that as of such date, (A) such certificates representing the Initial Pledged Equity representations and warranties contained in Section 4.01 are correct on and as of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, the Effective Date and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 no Default or a comparable form) under Event of Default as of the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect date thereof has occurred and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.is continuing;
(viiv) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, substantially in the form of Exhibit F hereto; and
(vi) Copies of the restated certificate of incorporation of the Company, together with all amendments, and a certificate of good standing, each certified by the Secretary of State of Delaware, as well as the Company’s employer identification number;
(b) The Company shall have paid all reasonable accrued fees and expenses of the Arrangers, the Administrative Agent and the Banks which are due and payable on the Effective Date to the extent invoiced (including, without limitation, the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Arrangers and the Administrative Agent);
(c) Both before and after giving effect to the Loan PartiesAcquisition, there shall have occurred no material adverse change in the business, financial condition, results of operations or properties of the Company and its Subsidiaries, taken as a whole, since December 31, 2003;
(d) Both before and after giving effect to the Acquisition, there shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the knowledge of any Responsible Officer of the Company, threatened, that could reasonably be expected (i) to have a Material Adverse Effect or (ii) to materially and adversely affect the legality, validity or enforceability of this Agreement or any Note;
(e) The representations and warranties contained in Section 4.01 shall be correct on and as of the Effective Date, as though made on and as of such date;
(f) No Default or Event of Default shall have occurred and be continuing;
(g) Evidence (satisfactory in form and substance to the Arrangers) of (x) the termination of the commitments under, and the payment of all amounts owing under, the Company’s existing five-year credit agreement dated as of October 10, 2002 among the Company, the banks party thereto and Bank One, NA, as administrative agent, (y) the termination of the commitments under, and the payment of all amounts owing under, the Company’s existing 364-day credit agreement dated as of October 9, 2003 among the Company, the banks party thereto and Bank One, NA as administrative agent and (z) the termination of the commitments under, and the payment of all amounts owing under, ▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ existing credit agreement dated as of March 14, 2003 among ▇▇▇▇▇ ▇▇▇▇▇▇▇, the banks party thereto and CNAI as administrative agent, in substantially each case, simultaneously with or immediately following the form Effective Date;
(h) A certificate from the Secretary of Exhibit D-1 heretoState of the State of Delaware dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by the Company;
(i) The Acquisition shall have been consummated, without amendment, modification or waiver of the Combination Agreement that would result in or require (x) a resolicitation of proxies pursuant to the Proxy Statement or (y) a waiver of the condition set forth in Section 4.1 (Dissent Rights) under the Combination Agreement;
(j) The Company’s long-term senior unsecured non-credit enhanced debt rating (and as to which there are no guarantors or other obligors) shall be at least BBB+ (stable) by S&P and Baa2 (stable) by ▇▇▇▇▇’▇;
(k) ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have delivered its consolidated financial statements as and for the year ended December 31, 2003, which shall have been audited by Deloitte & Touche LLP, as stated in their report attached thereto; and
(l) Such other approvals, opinions and documents relating to this Agreement and the transactions contemplated hereby as the Administrative Agent, any Issuing Bank or any Bank may, through the Administrative Agent, reasonably request.
Appears in 1 contract
Sources: Revolving Credit Agreement (Donnelley R R & Sons Co)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation This Agreement shall become effective on and as of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and first date (the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of "Effective Date") on which the following conditions precedentprecedent have been satisfied:
(a) Kraft shall have notified each Lender and Chase, as Administrative Agent, in writing as to the proposed Effective Date.
(b) On the Effective Date, the following statements shall be true and Chase, as Administrative Agent, shall have received for the account of each Lender a certificate signed by a duly authorized officer of Kraft, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default or Event of Default.
(c) Chase, as Administrative Agent Agent, shall have received on or before the Effective Date copies of the letters from ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc. dated on or before such day, terminating in whole the commitments of the banks party to the Existing Loan Agreements.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies Inc. and its Subsidiaries shall have satisfied all of their respective obligations under the Existing Loan Agreements including, without limitation, the payment of all fees under such agreements.
(e) Chase, as Administrative Agent, shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderChase, as Administrative Agent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards Board of directors Directors of each Kraft approving this Agreement, and of the Borrower all documents evidencing other necessary corporate action and each Guarantor approving the execution and delivery of governmental approvals, if any, with respect to this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(vii) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor Kraft certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Kraft authorized to sign this Agreement and the other documents to be delivered hereunder.
(viiii) The following: Favorable opinions of counsel (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties which may be able to deliver using their reasonable best effortsin-house counsel) for Kraft, (B) proper financing statements (Form UCC-1 or a comparable form) under substantially in the UCC form of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect Exhibits E-1 and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial LendersE-2 hereto.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiiiv) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇▇, counsel to the Loan Partiesfor Chase, as Administrative Agent, substantially in substantially the form of Exhibit D-1 G hereto.
(v) A certificate of the chief financial officer or treasurer of Kraft certifying that as of June 30, 2001 (A) the aggregate amount of Debt, payment of which is secured by any Lien referred to in clause (iii) of Section 5.02(a), does not exceed $400,000,000, and (B) the aggregate amount of Debt included in clause (A) of this subsection (v), payment of which is secured by any Lien referred to in clause (iv) of Section 5.02(a), does not exceed $200,000,000.
(f) This Agreement shall have been executed by Kraft, Chase and Citibank, as Administrative Agents, Credit Suisse First Boston and Deutsche Bank AG, as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank USA, as Arrangers and Documentation Agents, and Chase, as Administrative Agent, shall have been notified by each Initial Lender that such Initial Lender has executed this Agreement. Chase, as Administrative Agent, shall notify Kraft and the Initial Lenders of the date which is the Effective Date upon satisfaction of all of the conditions precedent set forth in this Section 3.01. For purposes of determining compliance with the conditions specified in this Section 3.01, each Lender 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 the Lenders unless an officer of Chase, as Administrative Agent, responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that Kraft, by notice to the Lenders, designates as the proposed Effective Date, specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation Agreement (and occurrence of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, “Effective Date”) is subject to the satisfaction Administrative Agent’s having received, on or before the Effective Date, each of the following conditions precedentitems, each of which must be in form and substance satisfactory to the Administrative Agent and the Purchasers in each such Person’s sole discretion:
(a) The Administrative Agent shall have received on A fully executed copy of this Agreement, the Purchase and Sale Agreements, the Controlled Account Agreements (covering all Collection Accounts and the Concentration Account), and the Fee Letter, each duly executed and delivered by the parties thereto.
(b) Evidence that ownership of each of the Collection Accounts has been transferred from the applicable Originator to the Seller.
(c) A certificate of an appropriate officer, director or before manager, as applicable, of each of the Seller, Covanta, individually and as Servicer, and each other Originator, dated as of the Effective Date the followingDate, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
certifying (i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies a true, correct and complete copy of the resolutions of the boards Board of directors Directors or Managers or other appropriate body of each such Person authorizing the execution, delivery and performance by it of the Borrower Transaction Documents to which it is a party is attached thereto and, with respect to the certificate of an officer of Covanta, also certifying that a true, correct and each Guarantor approving complete copy of the execution resolutions of the Board of Directors of Holding authorizing the execution, delivery and delivery performance by its Subsidiaries of the Transaction Documents is attached thereto; (ii) all necessary corporate or limited liability company action and governmental approvals, if any, required with respect to this Agreement.
Agreement and the other Transaction Documents have been taken; (iii) A that attached thereto is a true, complete and correct copy of (A) the charter certificate of incorporation or other constitutive document formation of each Guarantor and each amendment theretosuch Person, certified by the Secretary of State (as or a comparable official) of such Person’s State of organization or formation on a date reasonably near the Effective Date), if applicable(B) current by-laws, limited liability company agreement or other applicable organizational documents of such Person; and (C) good standing (or comparable) certificate of such Person issued by the Secretary of State (or a comparable official) of the such Person’s jurisdiction of its incorporation organization or organization, as formation on a date reasonably near the case may be, thereof as being a true and correct copy thereof.
Effective Date; (iv) A certificate the names, titles and true signatures of each its officers who are authorized to sign the Transaction Documents; (v) that all of the Borrower representations and each Guarantor signed on behalf of warranties herein and in the Borrower other Transaction Documents are true, complete and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and correct as of the Effective Date), certifying as Date and do not fail to (A) state a fact necessary to make the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate)foregoing not materially misleading; and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed that there is no Unmatured Termination Events or Termination Events in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, effect on the Effective Date.
(xiid) A favorable opinion solvency certificate executed by a senior financial officer of the Seller, Covanta and each other Originator, dated as of the Effective Date, certifying that such Person is Solvent.
(e) Completed search reports, dated a date prior to, but reasonably near the date hereof, listing all federal and state tax liens and Financing Statements filed in any jurisdiction referred to in subsection (f) of this Section that name Covanta, any other Originator or the Seller as debtor, showing no Adverse Claims on any Subject Property (unless evidence of termination is provided pursuant to subsection (h) of this Section or any interest in Subject Property described therein has been irrevocably released pursuant to the Disclaimer and Release described in subsection (g) of this Section).
(f) Proper Financing Statements suitable for filing under the UCC of all jurisdictions necessary to perfect the transfers of the Subject Property (other than the Controlled Accounts) pursuant to the Purchase and Sale Agreements and this Agreement (i) naming each Originator (other than Covanta) as debtor/seller, Covanta as secured party/purchaser and the Administrative Agent, for the benefit of the Secured Parties, as total assignee secured party; (ii) naming Covanta as debtor/seller, the Seller as secured party/purchaser and the Administrative Agent, for the benefit of the Secured Parties, as total assignee secured party; and (iii) naming the Seller as debtor/seller and the Administrative Agent, for the benefit of the Secured Parties, as secured party/purchaser.
(g) A Disclaimer and Release agreement executed by Covanta and the administrative agent under the Credit Agreement, pursuant to which the administrative agent under the Credit Agreement will irrevocably relinquish any lien on or interest in the Subject Property, the equity of the Seller, and the Covanta Notes and will agree to such other matters as the Administrative Agent may reasonably request.
(h) Acknowledgment copies of proper termination statements (Form UCC-3), any other relevant filings, any lien release agreements, standstill agreements, or other documentation (not otherwise described in subsection (g) of this Section) necessary or desirable to evidence the termination or irrevocable release of all security interests, ownership interests, and other rights of any Person in any Subject Property (not arising under a Transaction Document) or with respect to any Subject Property included in the collateral description of any Financing Statement in effect on or prior to the Effective Date (other than pursuant to a Transaction Document) that has not been terminated (whether or not there is an underlying security interest in such Subject Property by the Person listed as secured party on any such Financing Statement);
(i) Legal opinions of counsel for the Seller, Covanta, individually and as Servicer, and each Originator, each dated as of the Effective Date and addressed to the Purchasers, the Purchaser Agents and the Administrative Agent, from Milbank LLP or in-house counsel regarding: (i) creation and perfection of security interests (as defined in the UCC to include the sale of accounts) pursuant to the Purchase and Sale Agreements and this Agreement; (ii) corporate matters, including limited liability company or corporate authority, documents duly authorized, and enforceability; (iii) requisite approvals, licenses and consents from any Governmental Authority, (iv) no conflict with law, organizational documents, or any material contracts or agreements, including the Credit Agreement; (v) true sale of Pool Assets under each of the Purchase and Sale Agreements and non-consolidation between Seller, on the one hand and Covanta and the other Originators, on the other hand, (vi) that the companies are not required to register as an investment company (specifying, in the case of Seller, the applicability of the exemption set forth in Section 3(c)(5)(A) or (B) of the Investment Company Act), (vii) with respect to the Seller, that it is not a “covered fund” for purposes of the Volker Rule, and (viii) such other matters as are reasonably requested by the Administrative Agent.
(j) Satisfactory results of an audit or field exam (performed by representatives of the Administrative Agent) of the Originators and Servicer with respect to the Receivables, the ability of such Person to perform its obligations under the applicable Transaction Documents, collection, operating and reporting systems, the Credit and Collection Guidelines, and historical receivables data and accounts, including satisfactory results of a review of the respective operating locations.
(k) The stand-alone powers of attorney to be delivered on or prior to the Effective Date described in Section 4.4(b).
(l) Evidence of payment of all accrued and unpaid fees (including the structuring fee set forth in the Fee Letter) and all costs and expenses due and payable under any Transaction Document on or prior to the Effective Date, including the legal fees and expenses of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇, LLP, counsel to the Loan PartiesAdministrative Agent.
(m) With respect to any of the Seller, the Servicer, Covanta or any other Originator that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Person.
(n) Such other information with respect to the Pool Receivables and such other approvals or documents, in substantially each case, as the form Administrative Agent or any Purchaser may request.
(o) Formal approval of Exhibit D-1 heretothe transactions contemplated by the Transaction Documents by the credit committees and other applicable committees for each of the Purchasers.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Covanta Holding Corp)
Conditions Precedent to Effectiveness. The effectiveness of this Credit AgreementOn or before the date hereof, the obligation of each Term Lender Borrower shall deliver to make a Term Advance pursuant the Agent the following documents, properly executed and in form and content acceptable to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Agent and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedentBanks:
(a) The Administrative Agent shall have received on or before a Note, substantially in the Effective Date the followingform of Exhibit A, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders applicable Banks (to the extent requested in accordance with by any such Bank pursuant to Section 2.16(a2.4), at least three (3) Business Days prior to the Execution Date.
(iii) Certified copies a certified copy of resolutions or similar authorizing documentation of the resolutions of the boards of directors governing body of each of the Borrower and each the Guarantor approving authorizing the execution and delivery of this AgreementLoan Documents to which such Person is a party.
(iiiii) A a certificate of an officer of the Borrower and a certificate of the corporate secretary of the Guarantor, each, as to the incumbency and signatures of the officers of such Person signing the Loan Documents to which it is a party.
(i) a certified copy of the charter or other constitutive document certificate of each Guarantor incorporation and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate bylaws of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(vii) A certificate Certificates of Good Standing issued by the Secretary of the Secretary or an Assistant Secretary State of the Delaware in respect of each of the Borrower and each Guarantor certifying the names Guarantor, each, dated not more than 30 days prior to the date hereof.
(d) an opinion of counsel to the Borrower and true signatures the Guarantor, opining as to the due authorization, execution, delivery and enforceability of, in the case of the officers Borrower, this Agreement, and, in the case of the Guarantor, the Guaranty, and such other customary matters as the Agent may reasonably require.
(e) at least three (3) Business Days prior to the Execution Date, all documentation and other information regarding the Borrower and the Guarantor requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and or the other documents to be delivered hereunder.
Guarantor at least ten (vi10) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory Business Days prior to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Execution Date.
(xiif) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel at least five days prior to the Loan PartiesExecution Date, in substantially if the form Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification.
(g) the Agent shall have received all fees and other amounts due and payable on or prior to the Execution Date, including, to the extent invoiced, reimbursement or payment of Exhibit D-1 heretoall out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. For purposes of determining compliance with the conditions of this Section 6.1, each Bank 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 the Banks unless an officer of the Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Bank prior to the date hereof, specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the first date (the "Availability Date") on which the Agent shall have received counterparts of this Credit Agreement, Agreement duly executed by the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation Borrower and all of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Banks and the obligation following additional conditions precedent shall have been satisfied, except that Section 2.04, Section 2.06 and Section 5.01(i) shall become effective as of the Initial Issuing Bank to issue first date on which the initial Letter Agent shall have received counterparts of Credit are, in each case, subject to this Agreement duly executed by the satisfaction Borrower and all of the following conditions precedentBanks:
(a) The Administrative Borrower shall have notified the Agent in writing as to the proposed Availability Date, and the Availability Date shall occur no later than June 30, 2004.
(b) Each of the Co-Lead Arrangers 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.
(c) The Agent shall have received on or before the Effective Availability Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Agent and (except for the Notes) in sufficient copies for each Initial LenderBank:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders Banks to the extent requested in accordance with by any Bank pursuant to Section 2.16(a)2.17.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving each Loan Document to which the Borrower is or is to be a party, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Guarantor approving Loan Document to which the execution and delivery of this AgreementBorrower is or is to be a party.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement each Loan Document to which the Borrower is or is to be a party and the other documents to be delivered by the Borrower hereunder.
(iv) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Assistant Secretary and Assistant General Counsel for the Borrower, in substantially the form of Exhibit C-1 hereto.
(v) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable solvency opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇▇▇▇ & Zukin in form and substance satisfactory to the Co-Lead Arrangers.
(vii) A favorable opinion of Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Agent.
(d) Each of the Co-Lead Arrangers 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 Co-Lead Arrangers.
(e) 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 obligations or the rights and remedies of the Banks relating to the Agreement and the other Loan PartiesDocuments, and except as set forth in substantially Schedule 4.01(f) to this Agreement there shall have been no material adverse change in the form status, or financial effect on the Borrower and its subsidiaries on a consolidated basis, of Exhibit D-1 the Disclosed Litigation from that described to the Agent prior to August 18, 2003.
(f) 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, properties or prospects 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 Company stating that the condition in this Section 3.01(f) has been satisfied as of the Effective Date.
(g) Each of the Co-Lead Arrangers 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 Revolving Credit Agreement, the granting of guarantees and collateral and the payment of dividends by subsidiaries.
(h) The Master LC Facility Agreement shall be effective unless terminated in accordance with its terms.
(i) The Revolving Credit Agreement shall be effective in accordance with its terms.
(j) 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 Co-Lead Arrangers) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Co-Lead Arrangers that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(k) The Plan of Reorganization shall have been confirmed, including without limitation the economic and other terms of the settlement contemplated thereby, without any material changes not approved by each of the Co-Lead Arrangers.
(l) A final, non-appealable order reasonably satisfactory to the Co-Lead Arrangers shall have been entered in the Chapter 11 Cases approving the establishment of one or more trusts pursuant to Section 524(g) of the Bankruptcy Code in order to resolve the present asbestos claims and future demands against any of the Borrower's subsidiaries identified on Schedule 4.01(h) hereto, arising from exposure to asbestos and/or asbestos-related products prior to the date of entry of such order, which order (i) enjoins the assertion of such asbestos claims against the Borrower and such subsidiaries, (ii) contains an injunction which is reasonably satisfactory in scope, nature and extent to each of the Co-Lead Arrangers and (iii) incorporates the terms of the Plan of Reorganization.
(m) A final, non-appealable order reasonably satisfactory to each of the Co-Lead Arrangers shall have been entered in the Chapter 11 Cases approving the establishment of one or more trusts pursuant to Section 105(a) of the Bankruptcy Code in order to resolve the present silica claims and future demands against any of the Borrower's subsidiaries identified on Schedule 4.01(h) hereto, arising from exposure to silica and/or silica related products prior to the date of entry of such order, which order (i) enjoins the assertion of such silica claims against the Borrower and such subsidiaries, (ii) contains an injunction which is reasonably satisfactory in scope, nature and extent to each of the Co-Lead Arrangers and (iii) incorporates the terms of the
Appears in 1 contract
Sources: Senior Unsecured Credit Facility Agreement (Halliburton Co)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Agreement and the obligation of the Initial Issuing Bank Lender to issue make the initial Letter Revolving Loan and the initial Line of Credit are, in each case, Loan shall be subject to the prior satisfaction of each of the following conditions precedentconditions, unless waived by the Lender in writing:
(a) The Administrative Agent the Lender shall have received on or before the Effective Date each of the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Lender and (except for the Notes) in sufficient copies for each Initial Lenderits counsel:
(i) The Notes payable to this Agreement, the order Revolving Loan Note and each applicable Line of Credit Note duly executed and delivered by the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).Borrower;
(ii) Certified a duly executed Guaranty Agreement from the Guarantors, if any;
(iii) copies of the resolutions of the boards of directors of all corporate action taken by each of the Borrower and Guarantors, if any, including resolutions of the Board of Directors, authorizing the execution, delivery, and performance of the Loan Documents to which it is a party and each Guarantor approving other document to be delivered pursuant to this Agreement, certified as of the execution and delivery date of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, Agreement by the Secretary of State of the jurisdiction of its incorporation Borrower or organizationeach Guarantor, as the case may be, thereof as being a true and correct copy thereof.;
(iv) A certificate a certificate, dated as of each the date of this Agreement, of the Secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectivelyif any, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, 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 under this Agreement;
(v) a favorable opinion of independent counsel for the Borrower and the Guarantors satisfactory to the Lender, dated the date of this Agreement;
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by and copies of insurance policies evidencing compliance with the Initial Lenders.insurance requirements of this Agreement;
(vii) An intellectual property security agreement the certificates of incorporation or articles of organization (as amended, supplemented or otherwise modified from time to time in accordance with its terms, certified by the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms Secretary of the Loan Documents.State of the state of incorporation) and bylaws of the Borrower and each Guarantor, if any;
(viii) A forecast reasonably satisfactory to a Certificate of Good Standing or Certificate of Legal Existence issued by the Administrative Agent Secretary of the State of the states of incorporation and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for qualification of the Borrower and each Guarantor, if any, evidencing that the Borrower or such Guarantor is a corporation in good standing or legally exists in the state of its Subsidiaries, together with a written set of assumptions supporting such statements, for incorporation and in each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.State where it is qualified to do business;
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent extent reasonably available, tax clearance letters (Sales and Use, Corporate and Labor) from the Initial Lenders.Department of Revenue or similar taxing Governmental Authority relating to the Borrower and each Guarantor, if any;
(x) Audited Consolidated financial statements of all other documents, instruments and agreements that the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.Lender shall reasonably require in connection with this Agreement; and
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on evidence that the Effective DateBorrower has established and maintains its primary depository accounts with the Lender.
(xiib) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, All representations and warranties contained in substantially the form of Exhibit D-1 heretothis Agreement shall be true and correct in all material respects.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i2.01(a), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial any Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of the following conditions precedent:precedent (the first date on which all such conditions shall have been satisfied or waived being the “Effective Date”):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders Administrative Agent (unless otherwise specified) it being agreed that documents delivered in substantially the form and substance of the corresponding documents delivered under Section 3.01 of the Existing DIP Agreement, mutatis mutandis, are satisfactory to the Administrative Agent), and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A Unless the applicable Guarantor certifies as to the accuracy and completeness as of the Effective Date of the copies of the charter or other constitutive document delivered in connection with the Existing DIP Agreement, a copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness as of the Effective Date of the charter of the Borrower or such Guarantor delivered in connection with this Agreement (or in connection with the Existing DIP Agreement) and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) delivered in connection with this Agreement (or in connection with the Existing DIP Agreement) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate)thereto; and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial LendersAdministrative Agent.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents; provided that it is understood and agreed that the “Intellectual Property Security Agreement” delivered under (and as defined in) the Existing DIP Agreement shall satisfy this condition in all respects with respect to each Loan Party party thereto if the representations and warranties made by such Loan Party therein, including without limitation those referencing the schedules thereto, are true and correct in all material respects as of the Effective Date.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Effective Date and ending on the Stated Maturity Date month of December 2010 and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial LendersAgent.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than Existing Letters of Credit) to be issued, on the Effective Date.
(xiixi) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 heretohereto consistent in all material respects with the corresponding opinion delivered in connection with the Existing DIP Agreement.
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Sources: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Agent shall have received a counterpart of this Credit AgreementAgreement duly executed by the Borrower and a counterpart of, the obligation or a copy of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i)signature page to, the initial obligation this Agreement duly executed by all of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Banks and the obligation following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the Initial Issuing Bank to issue first date on which the initial Letter Agent shall have received counterparts of Credit are(or, in each casethe case of any Bank, subject to a copy of a signature page to) this Agreement duly executed by the satisfaction Borrower and all of the following conditions precedentBanks:
(a) The Administrative Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(b) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders Banks to the extent requested in accordance with by any Bank pursuant to Section 2.16(a)2.18.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving each Loan Document, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Guarantor approving the execution and delivery of this AgreementLoan Document.
(iii) A copy certificate of the charter secretary or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each an assistant secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement each Loan Document and the other documents to be delivered by the Borrower hereunder.
(viiv) The following: (A) such certificates representing A certificate of a Responsible Officer stating the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed respective ratings by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect of S&P and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms ▇▇▇▇▇’▇ of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements senior unsecured long-term debt of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, in effect on the Effective Date.
(xiiv) A certificate of a Responsible Officer stating that (A) all “Revolving Credit Commitments” (as defined in the Existing Agreement) of the “Banks” (as defined in the Existing Agreement) have been terminated, (B) either (1) no letter of credit is outstanding thereunder or (2) any such letters of credit are deemed to be Existing Letters of Credit under this Agreement, (C) no “Advances” (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and (D) all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such termination be given at least three (3) Business Days prior to such termination.
(vi) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇ & ▇▇▇▇▇▇, Vice President – Public Law and Assistant Secretary for the Borrower.
(vii) A favorable opinion of ▇▇▇▇▇ LLP▇▇▇▇▇ L.L.P., counsel for the Borrower.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a Responsible Officer, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are true and correct in all material respects (or, with respect to any representation or warranty qualified by materiality or a material adverse change or material adverse effect standard, in all respects) on and aas of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable and documented out-of-pocket expenses of the Joint Lead Arrangers shall have been paid (including the reasonable and documented fees and expenses of counsel to the Loan PartiesJoint Lead Arrangers for which invoices have been submitted to the Borrower at least two (2) Business Days prior to the Effective Date).
(i) The Borrower shall have delivered the documentation, in substantially certifications and other information to the form Joint Lead Arrangers and the Banks that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date, to the extent such documentation or other information is requested at least ten (10) days prior to the Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification to the Joint Lead Arrangers and the Banks at least three (3) Business Days prior to the Effective Date, to the extent requested at least five (5) Business Days prior to the Effective Date.
(f) The Borrower shall have paid all accrued fees and reasonable and documented out-of-pocket expenses of Exhibit D-1 heretothe Agent (including reasonable and documented fees and expenses of counsel for which invoices have been submitted to the Borrower at least two (2) Business Days prior to the Effective Date).
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, Agreement and the obligation of each Term Lender of the Banks to make a Term any Advance pursuant to Section 2.01(a)(i), the initial obligation hereunder or of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank CBT to issue the initial any Letter of Credit are, in each case, hereunder is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received on or before copies (in sufficient number for each of the Effective Date Banks to receive a copy) of all of the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (Administrative Agent and the Banks, unless otherwise specified) and (except for waived by each of the Notes) in sufficient copies for each Initial LenderBanks:
(i) The Notes payable to This Agreement, appropriately completed and duly executed by the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).parties hereto;
(ii) Certified copies Reaffirmation of the resolutions of the boards of directors of Subsidiary Guaranty, duly executed and delivered by each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.Subsidiary Guarantors;
(iii) A certificate of the secretary of each of the Borrowers, certifying that (i) a correct and complete copy of its Articles of Incorporation, with all amendments thereto, is attached to the certificate, (ii) a correct and complete copy of its Bylaws, with all amendments thereto, is attached to the certificate, (iii) a correct and complete copy of the charter or other constitutive document resolutions of each Guarantor its Board of Directors authorizing the execution, delivery and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State performance of the jurisdiction Loan Documents to which it is a party are attached to the certificate, and such resolutions have not been subsequently modified or repealed and (iv) there are no proceedings pending or contemplated as to the merger, consolidation, liquidation or dissolution of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.such Borrower;
(iv) A certificate of the secretary of each Subsidiary Guarantor, certifying that (i) with respect to each Subsidiary Guarantor which is a corporation, (A) there have been no changes to its Articles of Incorporation or By-laws since the date of certification thereof to the Banks, (B) if there have been any changes to such Subsidiary Guarantor's Articles of Incorporation or By-laws, a correct and complete copy of its Articles of Incorporation, certified by the Secretary of State of its state of incorporation, or Bylaws, as applicable, is attached to the certificate and (C) a correct and complete copy of the Borrower resolutions of its Board of Directors authorizing the execution, delivery and performance of the Loan Documents to which it is a party are attached to the certificate, and such resolutions have not been subsequently modified or repealed, (ii) with respect to each Subsidiary Guarantor signed which is a limited partnership, (A) there has been no change to such Subsidiary Guarantor's agreement of limited partnership since the date of certification thereof to the Banks, or if there has been any such change, a correct and complete copy of the agreement of limited partnership, with all amendments thereto, is attached to the certificate and (B) all action on behalf of the Borrower partnership and such Guarantorthe partners necessary to authorize the execution, respectively, by its President or a Vice President delivery and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as performance of the Effective Date)Loan Documents to which it is a party have been taken, certifying and (iii) there are no proceedings pending or contemplated as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolutionmerger, consolidation, liquidation or other termination dissolution of the existence of the Borrower or any such Subsidiary Guarantor.;
(v) A certificate certified copy of all documents evidencing any necessary consent or governmental approvals (if any) with respect to the execution, delivery and performance of the Secretary Loan Documents and the consummation of the transactions contemplated hereby; (vi) A certificate executed by the secretary or an Assistant Secretary any assistant secretary of each of the Borrower and each Guarantor Borrowers certifying the names and true signatures of the officers of the such Borrower and such Guarantor, respectively, authorized to sign the Loan Documents and to give notices and other communications in connection with this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) transactions contemplated hereby, together with a sample of the true signature of such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.officers;
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly A certificate executed by the secretary or an assistant secretary of each Loan Partyof the Subsidiary Guarantors certifying the names of the officers of such Subsidiary authorized to sign the Subsidiary Guaranty or the Reaffirmation of Subsidiary Guaranty, as applicable, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms a sample of the Loan Documents.true signature of such officers;
(viii) A forecast reasonably satisfactory favorable opinion of counsel to the Administrative Agent Borrowers and the Initial Lenders detailing Subsidiary Guarantors substantially in the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set form of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.Exhibit C attached hereto;
(ix) A DIP Budget reasonably satisfactory closing certificate (the "Closing Certificate"), executed by the president, senior vice president or chief financial officer of QDI, certifying that (i) the representations and warranties contained in this Agreement and each other Loan Document are true and accurate in all material respects, (ii) no Default or Event of Default has occurred and is continuing and (iii)except as disclosed therein, there has been no change to the Administrative Agent insurance maintained by QDI and its Subsidiaries as set forth in the Initial Lenders.evidence of insurance delivered to the Banks in connection with execution and delivery of the Existing Credit Agreement; and
(x) Audited Consolidated financial statements Such other approvalsor documents as the Administrative Agent or the Required Banks may reasonably request;
(b) Application of the Borrower and its Subsidiaries as at December 31, 2008 for proceeds of the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel Mortgage Transactions to the Loan Partiesrepayment of the Loans outstanding in a principal amount of not less than $45,000,000, together with the accrued interest thereon, plus, in substantially the form event that such prepayment results in the prepayment of Exhibit D-1 hereto.a LIBOR Base Loan, any amounts which are payable under Section 2.4 hereof;
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation This Agreement shall become effective on and as of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advancesfirst date on or before March 31, and 2005 (the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of "Effective Date") on which the following conditions precedentprecedent have been satisfied:
(a) The Borrower shall have paid all fees and expenses of the Administrative Agent and the Lenders payable hereunder and accrued as of the Effective Date (including the accrued fees and expenses of counsel to the Administrative Agent).
(b) On the Effective 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 the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct in all material respects on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to the order of each of the Non-rollup Revolving Credit Lenders Lenders, in a principal amount equal to the extent requested in accordance with Section 2.16(a)each such Lender's Commitment.
(ii) Certified copies of the resolutions t▇▇ ▇▇▇olutions of the boards Board of directors of each Directors (or committee thereof) of the Borrower and each Guarantor other Loan Party approving the execution and delivery of this Agreement, the Notes and the Guaranty to which it is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Agreement, the Notes and the Guaranty.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor Loan Party certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Loan Party authorized to sign this Agreement the Loan Documents to which it is a party and the other documents to be delivered hereunder.
(viiv) The following: (A) such certificates representing A guaranty in substantially the Initial Pledged Equity form of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement Exhibit E (as amended, supplemented or otherwise modified from time to time in accordance with its termstime, the “Intellectual Property Security Agreement”"Guaranty"), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan DocumentsGuarantor.
(viiiv) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statementAn opinion of Alston & Bird, balance sheet and cash flow statementLLP, each on a Consolidated basis counsel for the Borrower and its SubsidiariesLoan Parties, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of in subs▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLPlly the form of Exhibit F attached hereto and to such other matters as any Lender through the Administrative Agent may reasonably request.
(vi) An opinion of Linklaters, English counsel to for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 heretoG attached hereto and to such other matters as any Lender through the Administrative Agent may reasonably request.
(vii) An acceptance of the appointment of the Process Agent (as such term is defined in Section 8.12).
(d) The termination of the commitments of the lenders and the payment in full of all amounts outstanding under (i) the Five Year Credit Agreement dated as of June 18, 2001 among the Borrower, the lenders party from time to time thereto, Citibank, N.A., Bank of America, N.A. and HSBC Bank PLC, as co-syndication agents, and Bank of America, N.A. as funding agent, as thereafter amended, and (ii) the 364-Day Credit Agreement dated as of June 18, 2001 among the Borrower, the lenders party from time to time thereto, Citibank, N.A., Bank of America, N.A. and HSBC Bank PLC, as co-syndication agents, and Bank of America, N.A. as funding agent, as thereafter amended.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial any Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction or waiver of the following conditions precedent:precedent (the first date on which all such conditions shall have been satisfied or waived being the “Effective Date”):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) Executed counterparts of this Agreement and each Guaranty.
(ii) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a2.17(a).
(iiiii) Certified copies of the resolutions of the boards of directors of each of the Borrower Borrowers and each Guarantor (as constituted immediately prior to the Effective Date) and in respect of the Foreign Borrower, its shareholders, in customary form approving the execution and delivery of this Agreement.
(iiiiv) A copy of the charter or other constitutive document of each of the Borrowers and each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.; and (x) with respect to the Foreign Borrower, an up-to-date excerpt (uittreksel) from the trade register of the Dutch Chamber of Commerce (Kamers van Koophandel); and (y) with respect to the Swiss Guarantor a certified copy of the excerpt of the commercial register of the Canton of Thurgau relating to the Swiss Guarantor and a certified copy of the articles of association of the Swiss Guarantor issued by the commercial register of the Canton of Thurgau. 103 Chemtura (Revolving Facility) Credit Agreement
(ivv) A certificate of each of the Borrower Borrowers and each Guarantor signed on behalf of the each such Borrower and each such Guarantor, respectively, by a director, its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), in customary form, certifying as to (A) the accuracy and completeness as of the Effective Date of the charter or other constitutive document of the each such Borrower or such Guarantor and each amendment thereto delivered in connection with this Agreement and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) delivered in connection with this Agreement of the each such Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii3.01(a)(iii) were adopted and the absence of any changes thereto thereto; (C) a copy certificate as to the good standing (or equivalent document to the extent such concept or a similar concept exists under the laws of which shall be attached such jurisdiction) of such Borrower or such Guarantor as of a recent date from the Secretary of State (or other similar official, register or notary) of the jurisdiction where such Borrower or such Guarantor is organized and, to the extent available in such certificate)jurisdiction, commercial register excerpts; and (CD) in the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination case of the existence Foreign Borrower, the accuracy and completeness of the Borrower or any Guarantortrade register excerpt delivered pursuant to Section 3.01(a)(iv) above.
(vvi) A certificate of the Secretary or an Assistant Secretary (or director in the case of the Foreign Borrower or the Swiss Guarantor) of each of the Borrower Borrowers and each Guarantor Guarantor, in customary form, certifying the names and true signatures of the officers of the each such Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunderhereunder to which it is a party.
(vivii) A certificate (in form and substance reasonably satisfactory to the Administrative Agent) of the Chief Financial Officer of the Company attesting to the Solvency of the Loan Parties, taken as a whole, immediately after giving effect to the Transactions.
(viii) A certificate of a Responsible Officer of the Company, in customary form, certifying that the conditions specified in Sections 3.01(f)(i) and Sections 3.02(i)(A) and (B) have been satisfied.
(ix) The following: (A) such reasonably satisfactory evidence that certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV heretoEquity, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V heretoDebt, duly indorsed in blank, as the US Loan Parties may be able to deliver using their reasonable best efforts, have been delivered to and remained held by the administrative agent under the Term Facility, and (B) proper financing statements evidence of insurance (Form UCC-1 or to the extent required to be maintained pursuant to this Agreement) as reasonably requested by the Administrative Agent. 104 Chemtura (Revolving Facility) Credit Agreement
(A) Each Security Agreement, duly executed by each Loan Party expressed to be a comparable form) under the UCC of party to it, together with evidence that all jurisdictions actions that the Initial Lenders Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering interests in the Revolving Facility Collateral described and the Liens and security interests in Article IX hereofthe Term Facility Collateral, in each case completed in a manner reasonably satisfactory to the Lender Partiescreated under such Security Agreement, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented have been taken or otherwise modified from time to time will be taken in accordance with its termsthe terms of the Loan Documents, the “(B) each Intellectual Property Security Agreement”), duly executed by each Loan PartyParty having Intellectual Property covered thereby, together with evidence that all actions that the Initial Lenders Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the such Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
, (viiiC) A forecast reasonably satisfactory each Foreign Security Document (other than those set forth in clauses (A) and (B) above), duly executed by the relevant Foreign Loan Parties, (D) each Foreign Account Control Agreement duly executed by the appropriate parties, (E) the Deposit Account Control Agreements, in each case referred to in the Security Agreements and duly executed by the appropriate parties, (F) the Intercreditor Agreements, duly executed by the parties thereto and (G) the Subordination Agreement, duly executed by the parties thereto; provided, however, that if the Company is unable to deliver one or more of the items described in clause (E) above after the exercise of commercially reasonable efforts, or one or more of the items described in clause (B) above, or the item described in clause (C) or (D) above with respect to the Foreign Account Control Agreement for the account no. 1▇▇▇▇▇▇ at Commerzbank, delivery of such undelivered items shall not be a condition precedent under this Section 3.01, and the Company hereby agrees to deliver such items to the Administrative Agent within 60 days after the Effective Date; provided further that in each case, the Administrative Agent may, in its reasonable discretion, grant extensions of such time period.
(xi) Certified copies of UCC, United States Patent and the Initial Lenders detailing the Borrower’s anticipated monthly income statementTrademark Office and United States Copyright Office, balance sheet tax and cash flow statementjudgment lien searches or equivalent reports or searches, each on of a Consolidated basis for recent date listing financing statements, lien notices or comparable documents that name any US Loan Party as debtor and that are filed in those state and county jurisdictions, as applicable, in which any Loan Party is organized or maintains its principal place of business, none of which encumber the Borrower Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and other Liens permitted under Section 5.02(a)).
(xii) (A) audited annual financial statements of the Company and its Subsidiaries, together with on a written set of assumptions supporting such statementsConsolidated basis, for each month during the period commencing on the Petition Date year ended December 31, 2012; and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ixB) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated interim unaudited quarterly financial statements of the Borrower Company and its Subsidiaries as at since December 31, 2008 for the Fiscal Year then ended2012 through September 30, 2013.
(xixiii) A Notice of Borrowing for (and to the extent of) any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than Existing Letters of Credit) to be issued, on the Effective Date, if any.
(xiixiv) A favorable opinion of ▇K▇▇▇▇▇▇▇ & ▇E▇▇▇▇ LLP, counsel to the Loan Parties, in substantially form and substance reasonably satisfactory to the Administrative Agents.
(xv) A favorable opinion of Eversheds B.V., Dutch counsel to the Foreign Borrower, in form and substance reasonably satisfactory to the Foreign Administrative Agent.
(xvi) A favorable opinion of Exhibit D-1 heretoEversheds Ltd, Swiss counsel to the Foreign Borrower and the Swiss Guarantor, in form and substance reasonably satisfactory to the Foreign Administrative Agent.
(xvii) A favorable opinion of Norton R▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, English counsel to the Administrative Agents.
(xviii) [Reserved] 105 Chemtura (Revolving Facility) Credit Agreement
(xix) A favorable opinion of Norton R▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, German counsel to the Administrative Agents.
(xx) A favorable opinion of Lydian CVBA, Belgian counsel to the Administrative Agents.
(xxi) A favorable opinion of L▇▇▇ & Staehelin, Swiss counsel to the Administrative Agents.
Appears in 1 contract
Sources: Senior Secured Revolving Facilities Credit Agreement (Chemtura CORP)
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the This Agreement shall become effective upon satisfaction of the following conditions precedent:precedent (the “Closing Date”):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAdministrative Agent:
(i) The Notes payable to the order An executed counterpart of this Agreement signed on behalf of the Non-rollup Revolving Credit Lenders to Company, the extent requested in accordance with Section 2.16(a).Guarantors, the Administrative Agent and each Lender;
(ii) Certified copies To the extent requested pursuant to Section 2.11(a), a duly executed Note of the resolutions of Company, for the boards of directors account of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.requesting Lender;
(iii) A copy Certified copies of the charter UCC, tax and judgment lien searches, or other constitutive document of equivalent reports or searches, each Guarantor and each amendment thereto, certified (as of a recent date reasonably near listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name certain identified Loan Parties as debtor and that are filed in those state and county jurisdictions in which such Loan Party is organized or maintains its principal place of business, none of which encumber the Effective Date), if applicable, Collateral covered or intended to be covered by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.Collateral Documents (other than Permitted Liens),
(iv) A certificate of each the Secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), Company certifying as to (A) the accuracy and completeness copies attached thereto of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board Board of directors Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (or persons performing similar functionsB) copies attached thereto of such Person referred to in Section 3.01(a)(ii) were adopted the Certificate of Incorporation and by-laws of the absence of any changes thereto (a copy of which shall be attached to such certificate); Company and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder.;
(v) A certificate from the relevant Secretary of State dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by each Loan Party;
(vi) The following: A certificate of a duly authorized officer of the Company, dated the Closing Date, certifying that as of such date, (A) such certificates representing the Initial Pledged Equity representations and warranties contained in Section 6.01 are correct in all material respects on and as of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best effortsClosing Date, (B) proper financing statements (Form UCC-1 no Default or a comparable form) under Event of Default as of the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect date thereof has occurred and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, is continuing and (C) evidence from the Chief Financial Officer, the Solvency of insurance as reasonably requested by the Initial Lenders.Company on a consolidated basis both before and after giving effect to the transactions occurring on such date;
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in a form reasonably satisfactory to the Administrative Agent;
(viii) Opinions of the local counsel to the Borrower identified on Schedule 5.01(a)(viii), in each case, in a form reasonably satisfactory to the Administrative Agent;
(ix) A Perfection Certificate, duly executed by each of the Loan Parties;
(x) The Security Agreement, duly executed by each of the Loan Parties;
(xi) The Pledge Agreement, duly executed by each Specified Pledgor; and
(xii) Subject to Section 7.11(b), delivery of all documents, instruments and certificates and evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary or desirable in order to create and perfect Liens on the Collateral has been taken.
(b) The Company shall have paid all reasonable accrued fees and expenses of the Arrangers, the Administrative Agent and the Lenders which are due and payable on the Closing Date to the extent invoiced (including fees set forth in the Fee Letter and the reasonable and documented fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Arrangers and the Administrative Agent);
(c) There shall have occurred no material adverse change in the business, financial condition, results of operations or properties of the Company and its Subsidiaries, taken as a whole, since December 31, 2016;
(d) There shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the Loan Partiesknowledge of the Company, threatened, that could reasonably be expected to have a Material Adverse Effect;
(e) Receipt of such documentation as may be required by any Lender, any L/C Issuer or the Administrative Agent in substantially order to comply with Section 326 of the form USA PATRIOT Act or necessary for any Lender, any L/C Issuer or the Administrative Agent to verify the identity of Exhibit D-1 heretoany Borrower as required by Section 326 of the USA PATRIOT Act, as requested through the Administrative Agent at least 5 days in advance of the Closing Date; and
(f) The Administrative Agent shall have received a Borrowing Base Report as of August 31, 2017. Upon giving effect to the initial funding of Revolving Loans and issuance of Letters of Credit, and the payment by the Borrower of all fees and expenses incurred in connection herewith, Availability shall be at least $250,000,000. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified above in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved and accepted, and to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date, as notified by the Administrative Agent to the Lenders, specifying its objection thereto. The Administrative Agent shall promptly notify the Lenders of the occurrence of the Closing Date.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the first date (the "Effective Date") on which the Agent shall have received a counterpart of this Credit AgreementAgreement duly executed by the Borrower and a counterpart of, the obligation or a copy of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i)signature page to, the initial obligation this Agreement duly executed by all of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Banks and the obligation following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the Initial Issuing Bank to issue first date on which the initial Letter Agent shall have received counterparts of Credit are(or, in each casethe case of any Bank, subject to a copy of a signature page to) this Agreement duly executed by the satisfaction Borrower and all of the following conditions precedentBanks:
(a) The Administrative Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(b) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders Banks to the extent requested in accordance with by any Bank pursuant to Section 2.16(a)2.18.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving each Loan Document, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Guarantor approving the execution and delivery of this AgreementLoan Document.
(iii) A copy certificate of the charter secretary or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each an assistant secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement each Loan Document and the other documents to be delivered by the Borrower hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viiiiv) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set certificate of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements an officer of the Borrower stating the respective ratings by each of S&P and its Subsidiaries ▇▇▇▇▇'▇ of the senior unsecured long-term debt of the Borrower as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, in effect on the Effective Date.
(xiiv) A certificate of an officer of the Borrower stating that all "Commitments" (as defined in the Existing Agreement) of the "Banks" (as defined in the Existing Agreement) have been terminated, no letter of credit is outstanding thereunder, no "Advances" (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such termination be given at least three Business Days prior to such termination.
(vi) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Assistant Secretary and Assistant General Counsel for the Borrower, in substantially the form of Exhibit C-1 hereto.
(vii) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Borrower, in substantially the form of Exhibit C-2 hereto.
(viii) A favorable opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, in form and substance satisfactory to the Loan PartiesAgent.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in substantially Section 4.01 are correct on and as of the form Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default or an Event of Exhibit D-1 heretoDefault.
(d) All accrued fees and reasonable out-of-pocket expenses of the Co-Lead Arrangers shall have been paid (including the reasonable fees and expenses of counsel to the Co-Lead Arrangers for which invoices have been submitted).
(e) 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. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the This Agreement shall become effective upon satisfaction of the following conditions precedent:precedent (the “Closing Date”):
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAdministrative Agent:
(i) The Notes payable to the order An executed counterpart of this Agreement signed on behalf of the Non-rollup Revolving Credit Lenders to Company, the extent requested in accordance with Section 2.16(a).Guarantors, the Administrative Agent and each Lender;
(ii) Certified copies To the extent requested pursuant to Section 2.11(a), a duly executed Note of the resolutions of Company, for the boards of directors account of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.requesting Lender;
(iii) A copy Certified copies of the charter UCC, tax and judgment lien searches, or other constitutive document of equivalent reports or searches, each Guarantor and each amendment thereto, certified (as of a recent date reasonably near listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name certain identified Loan Parties as debtor and that are filed in those state and county jurisdictions in which such Loan Party is organized or maintains its principal place of business, none of which encumber the Effective Date), if applicable, Collateral covered or intended to be covered by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.Collateral Documents (other than Permitted Liens),
(iv) A certificate of each the Secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), Company certifying as to (A) the accuracy and completeness copies attached thereto of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board Board of directors Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (or persons performing similar functionsB) copies attached thereto of such Person referred to in Section 3.01(a)(ii) were adopted the Certificate of Incorporation and by-laws of the absence of any changes thereto (a copy of which shall be attached to such certificate); Company and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder.;
(v) A certificate from the relevant Secretary of State dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by each Loan Party;
(vi) The following: A certificate of a duly authorized officer of the Company, dated the Closing Date, certifying that as of such date, (A) such certificates representing the Initial Pledged Equity representations and warranties contained in Section 6.01 are correct in all material respects on and as of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best effortsClosing Date, (B) proper financing statements (Form UCC-1 no Default or a comparable form) under Event of Default as of the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect date thereof has occurred and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, is continuing and (C) evidence from the Chief Financial Officer, the Solvency of insurance as reasonably requested by the Initial Lenders.Company on a consolidated basis both before and after giving effect to the transactions occurring on such date;
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, in a form reasonably satisfactory to the Administrative Agent;
(viii) Opinions of the local counsel to the Borrower identified on Schedule 5.01(a)(viii), in each case, in a form reasonably satisfactory to the Administrative Agent;
(ix) A Perfection Certificate, duly executed by each of the Loan Parties;
(x) The Security Agreement, duly executed by each of the Loan Parties;
(xi) The Pledge Agreement, duly executed by each Specified Pledgor; and
(xii) Subject to Section 7.11(b), delivery of all documents, instruments and certificates and evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary or desirable in order to create and perfect Liens on the Collateral has been taken.
(b) The Company shall have paid all reasonable accrued fees and expenses of the Arrangers, the Administrative Agent and the Lenders which are due and payable on the Closing Date to the extent invoiced (including fees set forth in the Fee Letter and the reasonable and documented fees and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Loan Parties, in substantially Arrangers and the form of Exhibit D-1 hereto.Administrative Agent);
Appears in 1 contract
Conditions Precedent to Effectiveness. (a) The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, Agreement is subject to the prior or concurrent satisfaction of the following conditions precedent:
(a) The and the Administrative Agent shall have received on or before receive for the Effective Date account of each Lender party to the Agreement the following, each dated such day (each, unless otherwise specified)noted, dated the Effective Date, and in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and (except for the Notes) in sufficient copies for each Initial LenderArranger:
(i) The Notes payable Copies of resolutions of the Board of Directors of the Borrower (or its Executive Committee, together with evidence of the authority of the Executive Committee) approving this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, certified as of a recent date prior to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a)Effective Date.
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered by the Borrower hereunder.
(viiii) The following: (A) such certificates representing Certified copies of the Initial Pledged Equity Borrower's Certificate of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan PartyIncorporation, together with evidence that all actions that good standing certificates from the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms state of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent Delaware and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statementState of Minnesota, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit dated a recent date prior to be issued, on the Effective Date.;
(xiiiv) Copies of the Borrower's Bylaws, certified as of the Effective Date by their respective Secretary or an Assistant Secretary;
(v) Executed originals of this Agreement and the other documents to be delivered by the Borrower hereunder;
(vi) A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇, General Counsel to the Borrower, substantially in the form of Exhibit G hereto;
(vii) A favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel to for the Loan PartiesAgents, substantially in substantially the form of Exhibit D-1 H hereto;
(viii) A certificate of an authorized officer of the Borrower to the effect that since October 30, 1999, there has been no material adverse change in the operations, business or financial or other condition or properties of the Borrower and its Subsidiaries, taken as a whole;
(ix) Payment of up front fees to the Lenders, as agreed by and among the Arranger, Lenders and the Borrower.
(b) The Administrative Agent shall have received such other approvals, opinions or documents as the Requisite Lenders through the Administrative Agent may reasonably request (which request shall be made in sufficient time to allow the Borrower to comply therewith).
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation advance of the Non-rollup Revolving Floor Plan Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, hereunder is subject to the satisfaction receipt by Lender of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable to a. this Agreement duly executed and delivered by the order Borrowers;
b. the Security Agreement duly executed and delivered by Borrowers;
c. certificates of the Non-rollup Revolving Credit Lenders Secretary of each Borrower, attaching and certifying copies of the Borrower’s Organizational Documents and certifying that the Borrower is registered and qualified to the extent requested do business as a foreign legal entity in accordance with Section 2.16(a).
(ii) Certified each jurisdiction in which Collateral is or is expected to be located, and attaching copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter its managing stockholders, directors, members, or other constitutive document of each Guarantor and each amendment theretomanagers, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organizationauthorized committees, as the case may be, thereof as being a true authorizing the execution, delivery and correct copy thereof.
(iv) A certificate performance of each of the Credit Documents to which that Borrower is a party and certifying the name, title and true signature of each Guarantor signed on behalf officer or member of a Borrower executing the Credit Documents to which Borrowers are a party;
d. certified copies of certificates of good standing or existence, as may be available from the Secretary of State of Delaware (the jurisdiction of incorporation or organization of the Borrower Borrowers);
e. an opinion of legal counsel to Borrowers addressed to Lender and such Guarantorin form and substance satisfactory to Lender;
f. payment by Borrowers of all fees and reasonable expenses required hereunder or under any other Credit Document to be paid on or prior to the Closing Date in connection with the perfection or registration of the security interests or other Liens granted in favor of Lender in the Collateral pursuant to the Security Agreement;
g. certified copies of requests for information or copies (Form UCC-11), respectivelyor equivalent reports as of a recent date, by its President or a Vice President listing all effective financing statements that name Borrowers as debtor and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made that are filed in each jurisdiction in which certificate shall be true on and as each Borrower is “located” (within the meaning of the Effective DateUCC), certifying together with copies of such other financing statements or equivalent filings under applicable laws that name Borrowers as debtor;
h. as and to the extent required of Borrowers under the Security Agreement, as to (A) each Vessel that to become an item of Inventory of Borrowers financed with the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known initial Advance to be pending or threatened in writing for made hereunder, the dissolutionPledged Collateral, liquidation or other termination certificates of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blankinsurance, and such instruments evidencing other invoices, customs receipts, certificates, and papers as may be necessary to fulfill the Initial Pledged Debt referred requirements of the Security Agreement with respect to on Schedule V heretosuch Vessel; and
i. such Powers of Attorney, duly indorsed in blankand other approvals, consents, agreements, certificates, and documents, as Lender shall reasonably request for purposes of the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC registration and/or perfection of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and Lender’s security interest created or purported and/or Lien in each Vessel that is to become an item of Inventory of Borrowers financed with the initial Advance to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lendersmade hereunder.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto.
Appears in 1 contract
Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation This Agreement shall become effective on and as of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and first date (the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, subject to the satisfaction of “Effective Date”) on which the following conditions precedentprecedent have been satisfied:
(a) The Administrative Borrower shall have paid all fees required to be paid on or before the Effective Date, and all reasonable expenses of the Agent to the extent invoiced prior to the Effective Date.
(b) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Agent and (except for the Notes) in sufficient copies for each Initial Lender:
(i) The Notes payable made by the Borrower to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with by any Lender pursuant to Section 2.16(a)2.17.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors (or equivalent body) of the Borrower approving this Agreement and each Guarantor approving the execution Notes to be delivered by it, and delivery of its by-laws and certificate of incorporation, together with all amendments thereto, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this AgreementAgreement and such Notes.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the Notes and the other documents to be delivered by it hereunder.
(vi) The following: (A) such certificates representing the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiiiv) A favorable opinion of ▇▇▇▇▇ ▇. ▇▇▇▇ & ▇▇▇▇▇▇▇, Assistant General Counsel for the Borrower, substantially in the form of Exhibit D hereto and as to such other matters as any Lender through the Agent may reasonably request.
(v) A favorable opinion of ▇▇▇▇▇ LLPDay, counsel for the Borrower, in form and substance satisfactory to the Loan PartiesAgent.
(d) The Agent shall have received on or before the Effective Date (i) a counterpart of this Agreement signed on behalf of each party hereto and (ii) a copy of a good standing certificate issued by the Secretary of State of the jurisdiction of the Borrower’s jurisdiction of incorporation.
(e) The Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws, in substantially including the form of Exhibit D-1 heretoPATRIOT Act, requested at least three Business Days prior to the Effective Date.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Eastman Chemical Co)
Conditions Precedent to Effectiveness. The effectiveness This Agreement shall become effective on and as of the first date (the "Effective Date") on which the Agent shall have received a counterpart of this Credit AgreementAgreement duly executed by the Borrower and a counterpart of, the obligation or a copy of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i)signature page to, the initial obligation this Agreement duly executed by all of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, Banks and the obligation following additional conditions precedent shall have been satisfied, except that Section 2.04(a) shall become effective as of the Initial Issuing Bank to issue first date on which the initial Letter Agent shall have received counterparts of Credit are(or, in each casethe case of any Bank, subject to a copy of a signature page to) this Agreement duly executed by the satisfaction Borrower and all of the following conditions precedentBanks:
(a) The Administrative Borrower shall have notified the Agent in writing as to the proposed Effective Date.
(b) The Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified)day, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders Banks to the extent requested in accordance with by any Bank pursuant to Section 2.16(a)2.18.
(ii) Certified copies of the resolutions of the boards Board of directors of each Directors of the Borrower approving each Loan Document, and of all documents evidencing other necessary corporate or organizational action and governmental approvals, if any, with respect to each Guarantor approving the execution and delivery of this AgreementLoan Document.
(iii) A copy certificate of the charter secretary or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each an assistant secretary of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement each Loan Document and the other documents to be delivered by the Borrower hereunder.
(viiv) The following: (A) such certificates representing A certificate of a Responsible Officer stating the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lenders.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed respective ratings by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect of S&P and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms M▇▇▇▇'▇ of the Loan Documents.
(viii) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statement, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements senior unsecured long-term debt of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, in effect on the Effective Date.
(xiiv) A certificate of a Responsible Officer stating that (A) all "Commitments" (as defined in the Existing Agreement) of the "Banks" (as defined in the Existing Agreement) have been terminated, (B) either (1) no letter of credit is outstanding thereunder or (2) any such letters of credit are deemed to be Existing Letters of Credit under this Agreement, (C) no "Advances" (as defined in the Existing Agreement) are outstanding under the Existing Agreement, and (D) all fees and other amounts known by the Borrower to be payable under the Existing Agreement have been paid in full. Each Bank that is a party to the Existing Agreement waives the requirement of Section 2.05 of the Existing Agreement that notice of such termination be given at least three Business Days prior to such termination.
(vi) A favorable opinion of B▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Assistant Secretary and Senior Director for the Borrower, in substantially the form of Exhibit C-1 hereto.
(vii) A favorable opinion of B▇▇▇▇ & ▇B▇▇▇▇ LLP, counsel to for the Loan PartiesBorrower, in substantially the form of Exhibit D-1 C-2 hereto.
(c) On the Effective Date, the following statements shall be true and the Agent shall have received a certificate signed by a Responsible Officer, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default or an Event of Default.
(d) All accrued fees and reasonable out-of-pocket expenses of the Joint Lead Arrangers shall have been paid (including the reasonable fees and expenses of counsel to the Joint Lead Arrangers for which invoices have been submitted).
(e) 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. The effectiveness of this Credit Agreement, Agreement and the obligation obligations of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation of the Non-rollup Revolving Credit Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter of Credit are, in each case, fund its respective Loans shall be subject to the satisfaction of the following conditions precedent:precedent (the first Business Day on which such conditions precedent are so satisfied, the “Closing Date”):
(a) The Agent shall have received duly executed counterparts of this Agreement and each of the other Loan Documents requested by the Agent from the Borrower, each other Loan Party party thereto, each Lender as of the Closing Date and the Agent.
(b) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Initial LenderAgent:
(i) The Notes payable to the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the boards of directors of each of the Borrower and each Guarantor approving the execution and delivery of this Agreement.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of Loan Party dated the Borrower Closing Date and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement and the other documents to be delivered hereunder.
(vi) The following: (A) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such certificates representing Loan Party as in effect on the Initial Pledged Equity Closing Date and at all times since a date prior to the date of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed the resolutions described in blank, and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blank, as the Loan Parties may be able to deliver using their reasonable best effortsclause (B) below, (B) proper financing statements that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (Form UCC-1 or comparable governing body) of such Loan Party authorizing the execution, delivery and performance [[NYCORP:3664832v12::08/15/2017--08:07 PM]] of the Loan Documents to which such Loan Party is a comparable form) party and, in the case of the Borrower, the Borrowing under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner reasonably satisfactory to the Lender PartiesFacilities, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) evidence that the certificate or articles of insurance incorporation (or comparable organizational 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 (iii) below and (D) as reasonably requested by to the Initial Lendersincumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.
(viiii) An intellectual property security agreement (A certificate of another Responsible Officer as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect incumbency and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms specimen signature of the Loan DocumentsSecretary or Assistant Secretary executing the certificate pursuant to clause (i) above.
(viiiiii) A forecast reasonably satisfactory Certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Closing Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statementgood standing (where such concept is applicable) of each Loan Party as of a recent date, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set from such Secretary of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basisState (or comparable authority).
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xiiiv) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower and the other Loan Parties, dated as of the Closing Date, addressed to the Administrative Agent, each Collateral Agent and each Lender in form and substance reasonably satisfactory to the Agent and covering such other matters relating to the Loan PartiesDocuments and the Transactions as the Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion.
(v) Any Notes, to the extent requested at least three Business Days prior to the Closing Date by any Lender pursuant to Section 2.16.
(c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the form attached hereto as Exhibit B.
(d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of each of Holdings and the Borrower in the form attached hereto as Exhibit F-1 and Exhibit F-2, respectively.
(e) The Spinco Internal Reorganization and the Spinco Transfer shall have been consummated in all material respects or shall be consummated in all material respects substantially contemporaneously with the initial funding of the Facilities in all material respects in accordance with the Spinco Separation Agreement and the Acquisition Agreement, and the Spinco Distribution and the Spinco Acquisition (and the Spinco Merger) shall have been consummated, or shall be consummated on the Closing Date, in substantially all material respects in accordance with the Spinco Separation Agreement and the Acquisition Agreement (in each case without (A) any waiver of a closing condition by Spinco or any of its Affiliates, (B) any waiver of any kind (other than a waiver of the type described in the foregoing clause (A)) by any Person or (C) any amendment, modification or supplement thereof by any Person or any consent or election thereunder by any Person (any one of the foregoing, a “Modification”) that, in any such case, is material and adverse to the Arrangers or the Lenders (in each case, in their capacities as such) without the prior written consent of the Arrangers) (it being understood and agreed that any Modification that results in (y) any increase in the amount of the Leidos Special Dividend from $1,029,210,261 shall be deemed to be materially adverse to the Lenders and the Arrangers or (z) an increase in the amount of the Spinco Special Cash Payment of [[NYCORP:3664832v12::08/15/2017--08:07 PM]] greater than 10% from $1,800,000,000 shall be deemed to be materially adverse to the Lenders and the Arrangers). The Acquisition Agreement, the Spinco Separation Agreement and all other related documentation shall be in form and substance reasonably satisfactory to the Arrangers; provided that (x) the Acquisition Agreement provided to the Arrangers on January 26, 2016 is satisfactory to the Arrangers and (y) the Spinco Separation Agreement provided to the Arrangers on January 26, 2016 is satisfactory to the Arrangers. The Acquisition Agreement Representations shall be true and correct and the Specified Representations shall be true and correct in all material respects (or in all respects if separately qualified by materiality or Material Adverse Effect). The Administrative Agent shall have received a certificate, dated the Closing Date, from a Financial Officer of Exhibit D-1 heretoeach of Holdings and the Borrower certifying compliance with this Section 3.01(e).
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Conditions Precedent to Effectiveness. The effectiveness of this Credit Agreement, the obligation of each Term Lender to make a Term Advance pursuant to Section 2.01(a)(i), the initial obligation obligations of the Non-rollup Revolving Credit Fronting Bank and the Lenders to make Non-rollup Revolving Credit Advances, and the obligation of the Initial Issuing Bank to issue the initial Letter Extensions of Credit are, in hereunder shall not become effective until the date (the "Closing Date") on which each case, subject to the satisfaction of the following conditions precedentis satisfied:
(a) The Administrative Agent shall have received on or before the Effective Closing Date the following, each dated such day (unless otherwise specified)the Closing Date, in form and substance reasonably satisfactory to the Initial Lenders (unless otherwise specified) Administrative Agent and in sufficient copies for the Fronting Bank and each Lender (except for the Notes) in sufficient copies for each Initial Lender:):
(i) The Notes payable to Counterparts of this Agreement, duly executed by the order of the Non-rollup Revolving Credit Lenders to the extent requested in accordance with Section 2.16(a)Borrower.
(ii) Certified copies Contract Notes of the resolutions of Borrower, duly made to the boards of directors order of each Lender in the amount of the Borrower and each Guarantor approving the execution and delivery of this Agreementsuch Lender's Commitment.
(iii) A copy of the charter or other constitutive document of each Guarantor and each amendment thereto, certified (as of a date reasonably near the Effective Date), if applicable, by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.
(iv) A certificate of each of the Borrower and each Guarantor signed on behalf of the Borrower and such Guarantor, respectively, by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the accuracy and completeness of the charter of the Borrower or such Guarantor and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or equivalent organizational document) of the Borrower or such Guarantor as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(ii) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); and (C) the absence of any proceeding known to be pending or threatened in writing for the dissolution, liquidation or other termination of the existence of the Borrower or any Guarantor.
(v) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and each Guarantor certifying certifying:
(A) the names and true signatures of the officers of the Borrower and such Guarantor, respectively, authorized to sign this Agreement the Loan Documents;
(B) that attached thereto are true and correct copies of:
(1) the Declaration of Trust of the Borrower, together with all amendments thereto, as in effect on such date; (2) the resolutions of the Borrower's Board of Trustees approving the execution, delivery and performance by the Borrower of the Loan Documents; (3) all documents evidencing other necessary corporate or other similar action, if any, with respect to the execution, delivery and performance of the Loan Documents by the Borrower; and (4) true and correct copies of all Governmental Approvals referred to in clause (i) of the definition of "Governmental Approval" required to be obtained by the Borrower in connection with the execution, delivery and performance by the Borrower of the Loan Documents (including the order of the Securities and Exchange Commission); and
(C) 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.
(iv) A certificate signed by the Treasurer or Assistant Treasurer of the Borrower, certifying as to:
(A) the delivery to the Fronting Bank and 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
(B) the absence of any material adverse change in the financial condition, operations, properties or prospects of the Borrower or the Borrower and its Principal Subsidiaries, taken as a whole, since June 30, 1999, except as disclosed in the Disclosure Documents.
(v) A certificate of a duly authorized officer of the Borrower stating that (i) the representations and warranties of the Borrower contained in Section 6.01 are correct, in all material respects, on and as of the Closing Date before and after giving effect to any Extensions of Credit to be made on such date and the other documents to be delivered hereunderapplication of the proceeds thereof, and (ii) no event has occurred and is continuing which constitutes an Event of Default or Unmatured Default, or would result from such initial Extensions of Credit or the application of the proceeds thereof.
(vi) The following: (A) such certificates representing Such financial, business and other information regarding the Initial Pledged Equity of domestic entities referred to on Schedule IV hereto, accompanied by undated stock powers, duly executed in blank, Borrower and such instruments evidencing the Initial Pledged Debt referred to on Schedule V hereto, duly indorsed in blankits Principal Subsidiaries, as the Loan Parties may be able to deliver using their reasonable best efforts, (B) proper financing statements (Form UCC-1 Fronting Bank or a comparable form) under the UCC of all jurisdictions that the Initial Lenders may deem necessary or desirable in order to perfect and protect the Liens and security interest created or purported to be created under Article IX hereof, covering the Collateral described in Article IX hereof, in each case completed in a manner any Lender shall have reasonably satisfactory to the Lender Parties, and (C) evidence of insurance as reasonably requested by the Initial Lendersrequested.
(vii) An intellectual property security agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all actions that the Initial Lenders may deem reasonably necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Intellectual Property Security Agreement in the United States have been taken or will be taken in accordance with the terms of the Loan Documents.Favorable opinions of:
(viiiA) A forecast reasonably satisfactory to the Administrative Agent and the Initial Lenders detailing the Borrower’s anticipated monthly income statementDay, balance sheet and cash flow statement, each on a Consolidated basis for the Borrower and its Subsidiaries, together with a written set of assumptions supporting such statements, for each month during the period commencing on the Petition Date and ending on the Stated Maturity Date and setting forth the anticipated aggregate maximum amount of utilization of the Commitments on a monthly basis.
(ix) A DIP Budget reasonably satisfactory to the Administrative Agent and the Initial Lenders.
(x) Audited Consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2008 for the Fiscal Year then ended.
(xi) A Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit to be issued, on the Effective Date.
(xii) A favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP▇▇, counsel to the Loan PartiesBorrower, in substantially the form of Exhibit D-1 5.01A hereto and as to such other matters as the Fronting Bank or any Lender may reasonably request;
(B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel of NUSCO, in substantially the form of Exhibit 5.01B hereto; and as to such other matters as the Fronting Bank or any Lender may reasonably request; and
(C) King & Spalding, special New York counsel to the Administrative Agent, in substantially the form of Exhibit 5.01C hereto and as to such other matters as the Fronting Bank or any Lender may reasonably request.
(viii) Irrevocable notice to the administrative agent, the lender or other responsible Person under each Existing Credit Facility notifying such Person of the termination of the commitments or commitment of the lenders or lender or other credit provider thereunder, effective on or before the Closing Date.
(b) The commitments or commitment under each 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.
(c) All fees and other amounts payable pursuant to Section 2.03 hereof or pursuant to the Fee Letter shall have been paid (to the extent then due and payable).
(d) The Administrative Agent shall have received such other approvals, opinions and documents as the Fronting Bank or the Majority Lenders, through the Administrative Agent, shall have reasonably requested as to the legality, validity, binding effect or enforceability of this Agreement and the Notes or the financial condition, operations, properties or prospects of the Borrower and its Principal Subsidiaries.
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