Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial Advance and of the Issuing Bank to issue its initial Letter of Credit shall not become effective unless and until all fees due and payable by the Borrower in connection with this Agreement have been paid and the Administrative Agent shall have received the following: (a) Promissory notes, in a form acceptable to the Administrative Agent, payable to the order of each Lender that has requested such a note. (b) Copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and all documents evidencing other necessary corporate action, certified by the Secretary or an Assistant Secretary of the Borrower to be true and correct, and in full force and effect on and as of the date hereof. (c) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the date hereof, certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder. (d) A certificate of a Responsible Officer of the Borrower, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or both. (e) Certified copies of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement. (f) Certified copies of the Restated Charter and By-Laws of the Borrower. (g) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially in the forms of Exhibit C-1 and C-2, respectively, hereto and as to such other matters as the Issuing Bank or any Lender through the Administrative Agent may reasonably request. (h) A favorable opinion of King & Spalding, counsel for the Administrative Agent, substantially in the form of Exhibit D hereto.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial an Advance and or of the Issuing Bank to issue its initial a Letter of Credit shall not become effective unless and until all fees due and payable by on the Borrower in connection occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with this Agreement have been paid and the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, and in sufficient copies (except for the Notes), for each Lender Party:
(ai) Promissory notesThe Notes in substantially the form of Exhibit B, in a form acceptable to the Administrative Agent, and Exhibit C and Exhibit F payable to the order of each the applicable Lender that has requested such a noteParties duly executed by the Borrower.
(bii) Copies A guaranty in substantially the form of Exhibit E hereto duly executed by AGT Acquisition Corp., AmuseMatte Corporation and Miramar Equipment, Inc. (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "SUBSIDIARY GUARANTY").
(iii) A guaranty in substantially the form of Exhibit E hereto duly executed by each of the Devon Subsidiary Guarantors (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "DEVON SUBSIDIARY GUARANTY" ).
(iv) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation or organization, dated as of a date reasonably near to the date of the Initial Extension of Credit, listing the charter or other organizational document of each Loan Party and each amendment thereto on file in its office and certifying that (A) such amendments are the only amendments to such Loan Party's charter or other organizational document on file in its office, (B) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or organized and in good standing under the laws of the State of the jurisdiction of its incorporation or organization.
(v) A copy of a certificate of the Secretary of State of each State listed on Schedule 3.01(a)(v), dated reasonably near the date of the Initial Extension of Credit, stating that each Loan Party is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate, except as otherwise noted on Schedule 3.01(a)(v).
(vi) A certificate of each Loan Party signed on behalf of such Loan Party's duly authorized officer and Secretary or an Assistant Secretary, dated the date of the Initial Extension of Credit (the statements made in such certificate shall be true on and as of the date of the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter or other organizational document of such Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(a)(iv), (B) a true and correct copy of the by-laws of such Loan Party, as in effect on the date of the Initial Extension of Credit, (C) the due incorporation or organization and good standing of such Loan Party as a corporation 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 Loan Party, (D) true and correct copies of the resolutions of the Board of Directors of the Borrower each Loan Party approving this Agreement Agreement, the Notes, and all documents evidencing each other necessary corporate actionLoan Document and the Devon Acquisition Documents to which it is or is to be a party, and (E) a true and correct copy of the charter or other organizational document of each Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary or an Assistant Secretary of State of the Borrower to be jurisdiction of its incorporation or organization as being a true and correct, and in full force and effect on and as of the date hereofcorrect copy thereof.
(cvii) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the date hereof, each Loan Party certifying the names and true signatures of the officers of the Borrower such Loan Party authorized to sign this Agreement Agreement, the Notes, each other Loan Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(dviii) A certificate Such financial, business and other information regarding each Loan Party and each such Person's Subsidiaries as any of the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, obligations under Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated, in the case of the Borrower and its Subsidiaries, December 31, 1997, and in the case of the Company and its Subsidiaries, March 31, 1998, interim financial statements dated, in the case of the Borrower and its Subsidiaries, March 31, 1998, pro forma financial statements as to the Borrower and its Subsidiaries, taken as a Responsible Officer whole, and forecasts prepared by management of the Borrower, dated as of all in form and substance reasonably satisfactory to the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or bothLender Parties.
(e) Certified copies of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement.
(f) Certified copies of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially in the forms of Exhibit C-1 and C-2, respectively, hereto and as to such other matters as the Issuing Bank or any Lender through the Administrative Agent may reasonably request.
(h) A favorable opinion of King & Spalding, counsel for the Administrative Agent, substantially in the form of Exhibit D hereto.
Appears in 1 contract
Sources: Credit Agreement (Applied Graphics Technologies Inc)
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial an Advance and or of the any Issuing Bank to issue its initial a Letter of Credit shall not become effective unless and until all fees due and payable by on the Borrower in connection occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently with this Agreement have been paid and the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(ai) Promissory notes, in a form acceptable to the Administrative Agent, A Note payable to the order of each Lender that has requested such a noteNote prior to the Closing Date.
(bii) Copies Deeds of trust, trust deeds and mortgages, in substantially the form of Exhibit G hereto (with such changes as may be required to account for local law matters and otherwise reasonably satisfactory in form and substance to the Collateral Agent) and covering all Initial Borrowing Base Properties (together with each other deed of trust, trust deed and mortgage delivered in connection with any Additional Borrowing Base Property, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered on or before the Closing Date and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp, intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable for filing with all applicable governmental authorities,
(B) acknowledgment copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described therein,
(C) completed requests for information, dated on or before the Closing Date, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above and in such other jurisdictions specified by the Administrative Agent that name any Loan Party as debtor, together with copies of such other financing statements,
(D) unless otherwise agreed in writing by the Administrative Agent, with respect to each Borrowing Base Property, engineering, environmental and other similar reports with respect to such Borrowing Base Property, in form and substance and from professional firms reasonably acceptable to the Collateral Agent, together with a letter from each preparer thereof entitling the Administrative Agent and its successors and assigns to rely upon such reports; provided, that, with respect to the Initial Borrowing Base Properties located in Orlando, Florida, and Tempe, Arizona, if the Administrative Agent has not received engineering reports with respect to either of such Borrowing Base Properties on or before the Closing Date, the Borrower shall deliver such engineering reports to the Administrative Agent within 20 Business Days after the Closing Date,
(E) certificates of insurance as required by the terms of the Mortgages, together with endorsements, satisfactory to the Administrative Agent, naming the Administrative Agent as an additional insured and loss payee under the applicable insurance policies,
(F) unless otherwise agreed in writing by the Administrative Agent and the Required Lenders, an Appraisal of each Borrowing Base Property,
(G) fully-paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), in form and substance, with endorsements (including zoning endorsements where available) and in amounts reasonably acceptable to the Collateral Agent, issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral Agent and insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Collateral Agent may reasonably deem necessary or desirable, and with respect to any such property located in a State in which a zoning endorsement is not available, a zoning compliance letter from the applicable municipality in a form reasonably acceptable to the Collateral Agent; provided, that, with respect to any Initial Borrowing Base Property, if the Administrative Agent has not received any such zoning compliance letter that is required to be delivered as provided above on or before the Closing Date, the Borrower shall deliver such a zoning compliance letter to the Administrative Agent within 15 Business Days after the Closing Date,
(H) American Land Title Association/American Congress on Surveying and Mapping form surveys for which all necessary fees have been paid, dated not earlier than 45 days before the Closing Date, certified to the Collateral Agent and its successors, assigns and designees and to the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the Borrowing Base Properties described in such surveys are located and acceptable to the Collateral Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Collateral Agent; provided, that, with respect to any Initial Borrowing Base Property, if the Administrative Agent has not received a survey for such Initial Borrowing Base Property that complies with the requirements of this Section 3.01(a)(ii)(H) on or before the Closing Date, (1) the Borrower shall deliver such a survey to the Administrative Agent within 60 days after the Closing Date and (2) upon delivery of such survey the Borrower, at its sole cost and expense, shall deliver to the Administrative Agent endorsements or modifications to the Mortgage Policy relating to such Initial Borrowing Base Property deleting any survey-related exceptions and providing any additional endorsements or affirmative insurance which was not provided in the original of such Mortgage Policy as a result of the unavailability of a survey for such Initial Borrowing Base Property as of the Closing Date,
(I) signed copies of favorable opinions, addressed to the Administrative Agent and the other Secured Parties, of local counsel for the Loan Parties in each of the States in which the Borrowing Base Properties are located, in substantially the form of Exhibit F-4 hereto and as to such other matters as any Lender Party through the Collateral Agent may reasonably request,
(J) a true and complete copy of any property management agreement or leasing brokerage agreement pertaining to any of the Borrowing Base Properties, certified by the applicable Loan Party, and an assignment and subordination agreement, in form and substance satisfactory to the Administrative Agent and duly executed by such Loan Party and the counterparty to such property management agreement,
(K) a true and complete copy of the Ground Lease (Temple), certified by the applicable Loan Party, together with an estoppel and consent, in form and substance satisfactory to the Administrative Agent, duly executed by the Ground Lessor (Temple), and
(L) such other consents, agreements and confirmations of lessors and third parties as the Administrative Agent may reasonably deem necessary and evidence that all other action that the Collateral Agent may deem necessary in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken.
(iii) Certified copies of the resolutions of the Board of Directors Directors, board of managers, management committee, general partner or managing member (or other similar body), as applicable, of each Loan Party approving the Borrower approving this Agreement transactions contemplated by the Loan Documents and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary corporate actionaction and governmental and other third party approvals and consents, certified by if any, with respect to the transactions under the Loan Documents and each Loan Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State (or an equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, certificate of formation or other comparable organizational document of such Loan Party and of each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, certificate of formation or other comparable organizational document, as applicable, of such Loan Party that are on file in such Secretary’s office and (2) such Loan Party has paid all franchise taxes to the date of such certificate and (C) that such Loan Party is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(v) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation, limited partnership or limited liability company (except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect), dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, that such Loan Party is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(vi) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member or other authorized representative, if applicable), dated the Closing Date, certifying as to (A) a true and correct copy of the Borrower bylaws, operating agreement, partnership agreement or other governing document of such Loan Party as in effect on the date on which the resolutions referred to be true in Section 3.01(a)(iii) were adopted and correcton the Closing Date, (B) the due incorporation, organization or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or general or limited partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (C) the truth of the representations and warranties contained in full force and effect the Loan Documents as though made on and as of the date hereofClosing Date and (D) the absence of any event that has occurred and is continuing, or that would result from the Initial Extension of Credit, that constitutes a Default or an Event of Default.
(cvii) A certificate of the Secretary or an Assistant Secretary (or other Responsible Officer, if applicable) of the Borrower, dated as of the date hereof, each Loan Party certifying the names and true signatures of the officers of the Borrower such Loan Party authorized to sign this Agreement each Loan Document to which it is or is to be a party (either individually or as the general partner or managing member of another Loan Party) and the other documents to be delivered hereunderhereunder and thereunder.
(dviii) A certificate Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, Material Contracts and Tenancy Leases (together with copies thereof if requested by the Administrative Agent), audited annual financial statements for the year ending December 31, 2003, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lender Parties’ due diligence review reveals material changes since such financial statements, as of a Responsible Officer later date within 45 days of the Borrower, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or bothClosing Date).
(eix) Certified copies Evidence of all governmental approvals insurance naming the Administrative Agent as loss payee and authorizations required additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as is satisfactory to be obtained in connection with the execution, delivery and performance by the Borrower of this AgreementLender Parties.
(fx) Certified copies of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions An opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton ▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the BorrowerLoan Parties, in substantially in the forms form of Exhibit C-1 and C-2, respectively, F-1 hereto and as to such other matters as the Issuing Bank or any Lender Party through the Administrative Agent may reasonably request.
(hxi) A favorable Opinions of ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Loan Parties, and Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Delaware counsel for the Loan Parties, in substantially the form of Exhibit F-2 or Exhibit F-3 hereto, respectively, and as to such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xii) An opinion of King Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & Spalding▇▇▇▇ LLP, counsel for the Administrative Agent, substantially in form and substance satisfactory to the Administrative Agent.
(xiii) A Notice of Borrowing or Notice of Issuance, as applicable, and a Borrowing Base Certificate relating to the Initial Extension of Credit.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Loan Parties shall have no Debt, other than Surviving Debt, and all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties.
(i) The Formation Transactions shall have been consummated, (ii) the IPO shall have been consummated, (iii) the Parent Guarantor shall have received gross cash proceeds from the IPO in an amount not less than $211,750,000, and (iv) the common shares of the Parent Guarantor shall have been listed on the New York Stock Exchange.
(e) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred (i) no Material Adverse Change since December 31, 2003, and (ii) no material adverse change in the form Initial Borrowing Base Properties since the date of Exhibit D heretothis Agreement.
(f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Subsidiari
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial Advance and obligations of the Issuing Bank Lenders to issue its initial Letter extend credit by way of the sole drawdown under the Credit shall not become effective unless and until all fees due and payable by Facility is subject to the Borrower in connection with this Agreement have been paid and fulfilment of the Administrative Agent shall have received the followingfollowing conditions precedent prior to or concurrent with, such extension of credit:
(a) Promissory notesthe conditions precedent set forth in Section 12.1 have been fulfilled;
(b) all outstanding Indebtedness of the Borrower under the Bridge Credit Agreement shall have been repaid in full or arrangements satisfactory to the Administrative Agent in its sole and absolute discretion, shall have been made for the repayment of such Indebtedness concurrent with the initial drawdown hereunder and all guarantees executed and delivered in a connection therewith shall have been terminated and released;
(c) the Obligors have duly executed and delivered to the Administrative Agent this Agreement and the Guarantees, each in form acceptable and substance satisfactory to the Administrative Agent;
(d) the Administrative Agent has received, payable in form and substance satisfactory to the order Administrative Agent:
(i) a duly certified copy of the articles of incorporation, articles of amalgamation or similar documents and by-laws of each Lender that has requested such a note.Obligor;
(bii) Copies a certificate of status or good standing for each Obligor issued by the appropriate governmental body or agency of the resolutions jurisdiction in which such Obligor is incorporated;
(iii) a duly certified copy of the Board of Directors resolution of the Borrower approving this Agreement board of directors of each Obligor authorizing it to execute, deliver and all documents evidencing other necessary corporate actionperform its obligations under each Credit Documents to which such Obligor is a signatory;
(iv) a certificate of an officer of each Obligor, certified by the Secretary or an Assistant Secretary in such capacity, setting forth specimen signatures of the Borrower individuals authorized to be true and correct, and in full force and effect on and as of sign the date hereof.Credit Documents to which such Obligor is a signatory;
(cv) A a certificate of the Secretary or an Assistant Secretary a senior officer of the Borrower, dated as of the date hereofin such capacity, certifying that, to the names and true signatures best of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder.
(d) A certificate of a Responsible Officer of the Borrowerhis knowledge after due inquiry, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event Default has occurred and is continuing that constitutes an Event or would arise immediately upon the initial extension of Default or that would constitute an Event credit under the Credit Facility; and
(vi) a duly executed and completed pro forma compliance certificate, in the form attached as Schedule B hereto and signed by a senior financial officer of Default but for the requirement that notice be given or time elapseBorrower, or both.calculated after giving effect to the sole drawdown contemplated hereunder on the date hereof;
(vii) requisite information to identify each Obligor under applicable “know your client” legislation;
(e) Certified copies the Administrative Agent has received, in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) an opinion of all governmental approvals counsel to each Obligor, addressed to the Credit Parties and authorizations required their counsel, relating to be obtained in connection with the executionstatus and capacity of such Obligor, the due authorization, execution and delivery and performance by the Borrower of this Agreement.
(f) Certified copies validity and enforceability of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially Credit Documents to which such Obligor is a party in the forms jurisdiction of Exhibit C-1 incorporation of such Obligor and C-2, respectively, hereto in the Province of Ontario and as to such other matters as the Issuing Bank or any Lender through the Administrative Agent Lenders may reasonably request.; and
(hii) A favorable an opinion of King & Spalding, counsel for the Administrative Agent’s counsel with respect to the legality, substantially validity and binding nature obligations of each Obligor under, and the enforceability against such Obligor of, the Credit Documents which are governed by the laws of the Province of Ontario, together with such other opinions as may reasonably be required by a Lender for the purpose of satisfying its local law and/or internal credit requirements;
(f) the Lenders shall be satisfied, acting reasonably, that all necessary approvals, acknowledgements, directions and consents have been given and that all relevant laws have been complied with in respect of all agreements and transactions referred to herein; and
(g) the form Borrower shall have paid to (i) The Bank of Exhibit D heretoNova Scotia and Bank of Montreal, in their respective capacities as co-lead arrangers of the Credit Facility and (ii) the Lenders all fees and expenses required to be paid pursuant to the Credit Documents on or before the initial extension of credit under the Credit Facility.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial an Advance and on the occasion of the Issuing Bank to issue its initial Letter Initial Extension of Credit shall not become effective unless and until all fees due and payable by hereunder is subject to the Borrower in connection satisfaction of the following conditions precedent before or concurrently with this Agreement have been paid and the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(ai) Promissory notes, in a form acceptable to A Note duly executed by the Administrative Agent, Borrower and payable to the order of each Lender that has requested such a notethe same.
(bii) Copies [Intentionally Omitted].
(iii) As to each Unencumbered Asset:
(A) [Intentionally Omitted]; and
(B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall be in compliance with the requirements of Section 5.02(p).
(iv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of the resolutions of the Board of Directors of the Borrower Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving this Agreement the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate actionaction and governmental and other third party approvals and consents, certified by if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or an equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near (but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Borrower to Closing Date (the statements made in which certificate shall be true and correct, and in full force and effect on and as of the date hereofof the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of 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 (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(cix) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as each Loan Party (or Responsible Officer of the date hereof, general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the Borrower general partner or managing member of such 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.
(dx) A certificate of a Responsible Officer Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2016 of the BorrowerParent Guarantor, interim financial statements dated as the end of the date hereof, certifying (i) the accuracy of the representations most recent fiscal quarter for which financial statements are available and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or boththree months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(exi) Certified copies of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement[Intentionally Omitted.]
(fxii) Certified copies An opinion of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions of ▇▇▇Kleinberg, Kaplan, W▇▇▇▇ ▇. ▇▇▇& C▇▇▇▇, General Counsel of the BorrowerP.C., and of Hunton & ▇▇▇▇▇▇▇▇, New York counsel for the BorrowerLoan Parties, with respect to the matters (and in substantially the form) set forth in the forms of Exhibit C-1 and C-2, respectively, F-1 hereto and as to such other matters as the Issuing Bank or any Lender Party through the Administrative Agent may reasonably request.
(hxiii) A favorable An opinion of King & Spalding, local counsel for the Administrative AgentLoan Parties (A) from V▇▇▇▇▇▇ LLP in substantially the form of Exhibit F-2 hereto, (B) from H▇▇▇▇, ▇▇▇▇▇ & A▇▇▇▇▇, LLP in substantially the form of Exhibit F-3 hereto, and (C) a Delaware opinion in the form of Exhibit D F-4 hereto, in each case covering such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) A Notice of Borrowing relating to the Initial Extension of Credit and dated and delivered not less than three (3) Business Days prior to the date of the Initial Extension of Credit.
(xv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender Parties.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, 2016.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) Each Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such compliance satisfactory to the Administrative Agent.
(h) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial an Advance and on the occasion of the Issuing Bank to issue its initial Letter Initial Extension of Credit shall not become effective unless and until all fees due and payable by hereunder is subject to the Borrower in connection satisfaction of the following conditions precedent before or concurrently with this Agreement have been paid and the Administrative Agent shall have received the followingInitial Extension of Credit:
(a) Promissory notesThe Paying Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in a form acceptable and substance satisfactory to the Administrative Agent, Paying Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of each Lender the Lenders that has have requested such a noteNotes prior to the Effective Date.
(bii) Copies A pledge agreement in substantially the form of Exhibit D hereto (as amended, the "PLEDGE AGREEMENT"), duly executed by the Borrower, together with:
(A) evidence that the Qualified Securities have been credited to the Securities Account (as defined in the Pledge Agreement),
(B) duly executed copies of proper financing statements, to be filed immediately after the Initial Extension of Credit under the Uniform Commercial Code of all jurisdictions that the Paying Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Pledge Agreement,
(C) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements on file in the office of the county clerk of Oklahoma County, Oklahoma that name the Borrower as debtor, together with copies of such other financing statements, and
(D) evidence that all action that the Paying Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority Liens created under the Pledge Agreement has been taken.
(iii) A guaranty in substantially the form of Exhibit E hereto (together with each other guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in each case as amended, the "SUBSIDIARY GUARANTY"), duly executed by each Subsidiary Guarantor.
(iv) Certified copies of the resolutions of or on behalf of each Loan Party approving the Board Transaction and each Transaction Document to which it is or is to be a party and/or authorizing the general partner or managing member, as applicable, to act on behalf of Directors such limited partnership or limited liability company, as the case may be, and of the Borrower approving this Agreement and all documents evidencing other necessary corporate action (including, without limitation, all necessary general partner, managing member or other similar action) and governmental and other third party approvals and consents, certified by if any, with respect to the Transaction and each Transaction Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the jurisdiction of organization or an formation of each Loan Party and (if applicable) each general partner or managing member of each Loan Party dated reasonably near the date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the charter or similar Constitutive Documents of such Person and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Person's charter or Constitutive Documents on file in such Secretary's office, (2) such Person has paid all franchise taxes to the date of such certificate and (C) such Person is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(vi) A copy of a certificate of the Secretary of State of each jurisdiction in which any Loan Party or any general partner or managing member, as applicable, of each Loan Party is required to be qualified to do business, dated reasonably near the date of the Initial Extension of Credit, stating that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as applicable, in such State and has filed all annual reports required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party or on its behalf by its managing general partner or managing member, as applicable, of each Loan Party, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary (or persons performing similar functions), dated the date of the Borrower to Initial Extension of Credit (the statements made in which certificate shall be true and correct, and in full force and effect on and as of the date hereofof the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the Constitutive Documents of such Person since the date of the Secretary of State's certificate referred to in Section 3.01(a)(v), (B) a true and correct copy of the bylaws (or similar Constitutive Documents) as in effect on the date on which the resolutions referred to in Section 3.01(a)(iv) were adopted and on the date of the Initial Extension of Credit, (C) the due organization or formation and good standing or valid existence of such Person as a corporation, a limited liability company or a limited partnership, as the case may be, organized or formed under the laws of the jurisdiction of its organization or formation, and the absence of any proceeding for the dissolution or liquidation of such Person, (D) the truth of 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 (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(cviii) A certificate of the Secretary or an Assistant Secretary of the Borrowereach Loan Party or on its behalf by its managing general partner or managing member, dated as of the date hereof, applicable certifying the names and true signatures of the officers or managers, as applicable, of the Borrower such Person authorized to sign this Agreement on its behalf each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(d) A certificate of a Responsible Officer of the Borrower, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or both.
(eix) Certified copies of each of the Related Documents, duly executed by or on behalf of the parties thereto and in form and substance satisfactory to the Lender Parties, together with all governmental approvals agreements, instruments and authorizations required to be obtained other documents delivered in connection with therewith as the execution, delivery and performance by the Borrower of this AgreementPaying Agent shall request.
(fx) Certified copies An assumption agreement in substantially the form of Exhibit H hereto (the Restated Charter "ASSUMPTION AGREEMENT"), duly executed by AROP. 61
(xi) Certificates, in form and By-Laws substance satisfactory to the Lender Parties, attesting to the Solvency of each Loan Party before and after giving effect to the BorrowerTransaction, from its Chief Financial Officer (or person performing similar functions).
(gxii) An environmental assessment report previously delivered to the Co-Administrative Agents prior to the Effective Date, as to any hazards, costs or liabilities under Environmental Laws to which any Loan Party or any of its Subsidiaries may be subject, the amount and nature of which and the Borrower's plans with respect to which shall be acceptable to the Lender Parties, together with evidence, in form and substance satisfactory to the Lender Parties, that all applicable Environmental Laws shall have been complied with. To the extent that either such report or any other information that may become available to the Lender Parties shall disclose any hazards, costs or liabilities under Environmental Laws or otherwise that the Lender Parties deem material, the Lender Parties shall be satisfied that such hazards, costs or liabilities were adequately reflected in the Borrower's financial reserves shown on the financial statements included in the Information Memorandum or that, to the extent not so reflected, the Borrower has made adequate provision for such hazards, costs or liabilities.
(xiii) A reasonableness review from Weir ▇▇▇ernational Mining Consultants with respect to the mine development plans that were delivered to the Paying Agent prior to the date hereof in form and substance satisfactory to the Lenders, including, without limitation, minimum coal reserves, verification of operating and productivity assumptions, the Gibs▇▇ ▇▇▇nty Project, Capital Expenditures, reclamation and closing costs and revenue projections.
(xiv) A five year Business Plan in form and scope satisfactory to the Lenders.
(xv) A Notice of Borrowing relating to the Initial Extension of Credit.
(xvi) Favorable opinions of (i) Andr▇▇▇ & ▇urt▇ ▇.▇.P., special counsel for the Loan Parties, (ii) Crow▇▇▇ & ▇ori▇▇ ▇▇▇▇▇, counsel for the Loan Parties, (iii) Thom▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇nior Vice President-Law and Administration and General Counsel of Alliance Resource Holdings, Inc., in substantially the respective forms of Exhibits G-1, G-2 and G-3 hereto, and (iv) local counsel with respect to the laws of Illinois, Indiana, Kentucky, Maryland and West Virginia in form satisfactory to the Co-Administrative Agents.
(xvii) A favorable opinion of Shearman & Sterling, counsel for the Agents, in form and substance satisfactory to the Agents.
(b) The Lenders shall be satisfied with the partnership or limited liability company structure and capitalization of each Loan Party, including, without limitation, the terms and conditions of the Constitutive Documents and each class of Equity Interest in such Loan Party and each other agreement or instrument relating to such partnership structure, legal structure, and capitalization, and the tax status of the Borrower as being treated as a partnership for tax purposes.
(c) The Lender Parties shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Lender Parties.
(d) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 1998.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect other than the matters satisfactory to the Paying Agent and described on Schedule 4.01(f) hereto (the "DISCLOSED LITIGATION") or (ii) purports to affect the legality, validity or enforceability of Hunton & ▇▇▇▇▇▇▇▇any Transaction Document or the consummation of the Transaction, counsel for the Borrower, substantially and there shall have been no adverse change in the forms of Exhibit C-1 and C-2status, respectively, hereto and as to such other matters as the Issuing Bank or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained or shall be in the process of being obtained so long as it is not anticipated that such consents and approvals may not be obtained (in each case without the imposition of any conditions that are not acceptable to the Lender through Parties) and those obtained shall be in effect (other than those the Administrative Agent may failure to obtain which would individually or collectively be reasonably requestlikely not to have a Material Adverse Effect); and no law or regulation shall be applicable in the judgment of the Lender Parties, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any Collateral.
(g) The Agents shall have completed a due diligence investigation of each Loan Party and its Subsidiaries in scope, and with results, satisfactory to the Lender Parties.
(h) A favorable opinion The Borrower shall have paid all accrued fees of King the Agents, the Joint Arrangers and the Lender Parties and all reasonable expenses of the Agents (including the reasonable fees and expenses of Shearman & SpaldingSterling, counsel for to the Administrative Agent, substantially Agents) to the extent such fees and expenses have been invoiced at least 24 hours prior to the date hereof or are specifically set forth in the form Fee Letter.
(i) The Borrower shall have received (i) $180,000,000 in gross proceeds from the sale of Exhibit D heretothe Senior Notes and (ii) $[140,000,000] in Net Cash Proceeds from the sale of the MLP Units.
(j) The MLP Units and the Senior Notes shall have been issued in accordance with the Transaction Documents.
(k) The Senior Notes shall have received long-term senior unsecured non-credit enhanced debt ratings of at least BBB- from both Duff & Phel▇▇ ▇▇▇dit Rating Co. and Fitch IBCA, Inc and such rating shall remain in effect at the time of closing.
(l) The Borrowers and its Subsidiaries employee benefit plans shall be, in all material respects, funded in accordance with the minimum statutory requirements, (ii) no "reportable event" (as defined in ERISA, but excluding events for which reporting has been waived) shall have occurred and be continuing as to any such employee benefit plan, and (iii) no termination of, or withdrawal from, any such employee benefit plan shall have occurred and be continuing or be contemplated.
(m) The Company and AROP shall have completed each of the transactions described in the Contribution Agreement (the "CONTRIBUTION TRANSACTIONS") and no provision of the Contribution Agreement relating to the Contribution Transactions shall have been waived, modified or supplemented without the consent of the Co-Administrative Agents.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial a Committed Advance and on the occasion of the Issuing Bank to issue its initial Letter Initial Extension of Credit shall not become effective unless and until all fees due and payable by hereunder is subject to the Borrower in connection satisfaction of the following conditions precedent before or concurrently with this Agreement have been paid and the Initial Extension of Credit:
(i) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Committed Notes) in sufficient copies for each Lender:
(aA) Promissory notes, in a form acceptable to the Administrative Agent, The Committed Notes payable to the order of each Lender that has requested such a notethe Lenders.
(bB) Copies Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Borrower approving this Agreement Acquisition and the other transactions contemplated by the Transaction Documents and each Transaction Document to which it is or is to be a party, and of all documents evidencing other necessary corporate actionaction and governmental and other third party approvals and consents, certified if any, with respect to the Acquisition and the other transactions contemplated by the Transaction Documents and each Transaction Document to which it is or is to be a party.
(C) A copy of a certificate or certificates of the Secretary of State or an Assistant Secretary other appropriate official of the jurisdiction of incorporation of (x) the Borrower, dated reasonably near the date of the Initial Extension of Credit, certifying (A) as to a true and correct copy of the charter of the Borrower and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to the Borrower's charter on file in such Secretary's office, (2) the Borrower has paid all franchise taxes to the date of such certificate and (C) the Borrower is duly incorporated and in good standing or presently subsisting under the laws of the 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 existence) of such Loan Party.
(D) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the date of the Initial Extension of Credit (the statements made in which certificate shall be true and correct, and in full force and effect on and as of the date hereofof the Initial Extension of Credit), certifying as to (1) in the case of the Borrower, the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State's certificate referred to in Section 3.01(a)(i)(C), (2) a true and correct copy of the bylaws (in the case of the Borrower) or the constitutional documents (in the case of each Guarantor) of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(i)(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 proceeding for the dissolution or liquidation of such Loan Party, (4) the truth of 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 (5) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(cE) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the date hereof, each Loan Party certifying the names and true signatures of the officers of the Borrower such Loan Party authorized to sign this Agreement each Transaction Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(dF) A certificate of a Responsible Officer Certified copy of the BorrowerPurchase Agreement, dated duly executed by the parties thereto, together with all agreements, instruments and other documents delivered in connection therewith as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or bothAdministrative Agent shall reasonably request.
(eG) Certified copies Certificates, in substantially the form of all governmental approvals Exhibit D hereto, attesting to the Solvency of each Loan Party before and authorizations required after giving effect to be obtained in connection with the execution, delivery Acquisition and performance the other transactions contemplated by the Borrower of this AgreementTransaction Documents, from its Chief Financial Officer.
(fH) Certified copies A favorable opinion of (1) ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel for the Restated Charter Parent, in substantially the form of Exhibit E-1 hereto and By-Laws as to such other matters as any Lender through the Administrative Agent may reasonably request , (2) ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, New York counsel for the Loan Parties, in substantially the form of Exhibit E-2 hereto and as to such other matters as any Lender through the Borrower.
Administrative Agent may reasonably request and (g3) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇ & ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, Bermuda counsel for the BorrowerSubsidiary Guarantors, in substantially in the forms form of Exhibit C-1 and C-2, respectively, E-3 hereto and as to such other matters as the Issuing Bank or any Lender through the Administrative Agent may reasonably request.
(hI) A favorable opinion certificate of King & Spaldingthe Parent, counsel signed by its President or Chief Financial Officer, dated the date of the Initial Extension of Credit, certifying as to (1) a description (in reasonable detail) of the portion of the Acquisition occurring on the date of the Initial Extension of Credit and (2) the percentage that the portion of the purchase price allocable to the assets acquired at such time in connection with the Acquisition bears to the aggregate purchase price for all assets to be acquired in connection with the Acquisition..
(ii) (x) No development or change occurring after January 11, 1999, and no information becoming known after such date, that results in a material change in the post-Acquisition corporate and capitalization structure of the Parent or in the capitalization structure of the Parent's subsidiaries contemplated in the Pre-Commitment Information and (y) the Lenders shall be reasonably satisfied with the corporate and legal structure and capitalization of the Borrower and each other Loan Party (other than the Parent), including the terms and conditions of the constitutional documents of each such Person and of each material agreement or instrument relating to such structure.
(iii) The Lenders shall be reasonably satisfied that all Existing Debt, other than Surviving Debt, has been (or concurrently will be) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions reasonably satisfactory to the Lenders.
(iv) Before giving effect to the Acquisition and the other transactions contemplated by the Transaction Documents, there shall have occurred no material adverse change since September 30, 1998 in the business, financial condition, operations or properties of (i) CIGNAP&C or (ii) the Parent and its Subsidiaries, taken as a whole.
(v) 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 a material adverse effect on the business, financial condition, operations or properties of CIGNAP&C or (y) would reasonably be expected to materially adversely affect the legality, validity or enforceability of any Transaction Document or the consummation of the Acquisition or the other transactions contemplated by the Transaction Documents.
(vi) All governmental and third party consents and approvals necessary in connection with the portion of the Acquisition occurring on the date of the Initial Extension of Credit and the other transactions contemplated by the Transaction Documents to occur on such date shall have been obtained (without the imposition of any conditions that are not reasonably acceptable to the Lenders and that would reasonably be expected to have a Material Adverse Effect) and shall remain in effect, except for any such consents and approvals, the absence of which, either individually or in the aggregate, would not reasonably be likely to have a Material Adverse Effect; all applicable waiting periods in connection with the portion of the Acquisition occurring on the date of the Initial Extension of Credit and the other transactions contemplated by the Transaction Documents to occur on such date shall have expired without any negative action being taken by any competent authority; and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the portion of the Acquisition occurring on the date of the Initial Extension of Credit or the other transactions contemplated by the Transaction Documents to occur on such date.
(vii) The Pre-Commitment Information shall be true and correct in all material aspects, and no additional information shall have come to the attention of the Administrative AgentAgent or the Lenders that is inconsistent in any material respect with the Pre-Commitment Information or that could reasonably be expected to have a Material Adverse Effect.
(viii) No development or change occurring after January 11, substantially 1999, and no information becoming known after such date, that (x) results in or could reasonably be expected to result in a material change in, or material deviation from, the form Pre-Commitment Information that is or could reasonably be expected to be materially adverse to the Parent or any of Exhibit D heretoits Subsidiaries or materially adverse to the Lenders or (y) has had or could reasonably be expected to have a Material Adverse Effect.
(ix) The Borrower 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.
(x) The portion of the Acquisition occurring on the date of the Initial Extension of Credit shall have been consummated (or shall be concurrently consummated) in accordance with the terms of the Purchase Agreement, without any waiver or amendment not consented to by the Lenders of any material term, provision or condition set forth therein that would reasonably be expected to have a Material Adverse Effect, and in compliance with all material applicable laws.
(xi) The Purchase Agreement shall be in full force and effect.
Appears in 1 contract
Sources: Credit Agreement (Ace LTD)
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial Advance and extend any credit contemplated by this Agreement is subject to the fulfillment to Lender’s satisfaction of all of the Issuing Bank to issue its initial Letter of Credit shall not become effective unless and until all fees due and payable by the Borrower in connection with this Agreement have been paid and the Administrative Agent shall have received the followingfollowing conditions:
(a) Promissory notesThere shall exist no Default, as defined in this Agreement, or Default as defined in any of the other Loan Documents or in the Other Related Documents, or Unmatured Default; and
(b) Lender shall have received all Loan Documents, other documents, instruments, policies, and forms of evidence or other materials reasonably requested by Lender under the terms of this Agreement or any of the other Loan Documents; and
(c) There shall have been no material adverse change, as reasonably determined by Lender, in the financial condition or business of Borrower, nor any material decline, as reasonably determined by Lender, in the market value of a substantial or material portion of the assets of Borrower; and
(d) Borrower shall have delivered to Lender evidence of insurance coverage on all Borrower’s property, in form, substance, amounts, covering risks and issued by companies reasonably satisfactory to Lender, with loss payable endorsements in favor of Lender; and
(e) With respect to any advances under the 2007 Term Loan, Borrower shall have delivered to Lender (i) a fully executed Assignment and Assumption of Lease in form approved by Lender, pursuant to which Borrower has received an assignment of the interests of the tenant under a lease dated July 22, 2004 pertaining to the New Data Center (the “Lease”); (ii) a Collateral Assignment of Lease, Attornment and Nondisturbance Agreement in a form provided by Lender, executed by Borrower and by ▇▇▇▇ Enterprises Utah, L.L.C. as the landlord under the Lease; and (iii) a Landlord’s Estoppel Certificate and Agreement, in a form acceptable to the Administrative Agentprovided by Lender, payable to the order of each Lender that has requested such a note.
(b) Copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and all documents evidencing other necessary corporate actionexecuted by ▇▇▇▇ Enterprises Utah, certified by the Secretary or an Assistant Secretary of the Borrower to be true and correct, and in full force and effect on and as of the date hereof.
(c) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the date hereof, certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder.
(d) A certificate of a Responsible Officer of the Borrower, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or both.
(e) Certified copies of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement.L.L.C.
(f) Certified copies of With respect to any advances under the Restated Charter and By-Laws of 2007 Term Loan, Borrower shall have deposited into an account with Lender, identified as account no. 153195055956, an amount equal to rent due under the BorrowerLease for one (1) month.
(g) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially in the forms of Exhibit C-1 and C-2, respectively, hereto and as to such other matters as the Issuing Bank or any Lender through the Administrative Agent may reasonably request.
(h) A favorable opinion of King & Spalding, counsel for the Administrative Agent, substantially in the form of Exhibit D hereto.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial Advance and an Advance, or of the Issuing Bank to issue its initial a Letter of Credit, in each case, on the occasion of the Initial Extension of Credit shall not become effective unless and until all fees due and payable by hereunder is subject to the Borrower in connection satisfaction of each of the following conditions precedent before or concurrently with this Agreement have been paid and the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent and the Lenders, and in sufficient copies (except for the Notes), for each Lender Party:
(A) the Term A Notes payable to the order of the Term A Lenders, (B) the Term B Notes payable to the order of the Term B Lenders and (C) the Revolving Credit Notes payable to the order of the Revolving Credit Lenders, in each case duly executed by the Borrower.
(ii) A security agreement in substantially the form of EXHIBIT G granting to the Administrative Agent, for the ratable benefit of the Secured Parties, a first and only priority security interest in all of the personal property and assets (excluding real property, the capital stock of the Garbage Subsidiary or any Subsidiary of the Garbage Subsidiary, Vessels, and customer contracts (including, without limitation, charters and contracts of affreightment) of the Borrower and each Turecamo Entity (together with the Old ▇▇▇▇▇ Security Agreement and each other security agreement delivered pursuant to Section 5.13, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, whether one or more, each a "SECURITY AGREEMENT"), duly executed by the Borrower and each Turecamo Entity, together with:
(A) proper, duly executed financing statements under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first and only priority Liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement;
(B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed that name the Borrower or any other Loan Party as debtor, together with copies of such financing statements;
(C) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby;
(D) evidence of the insurance required by the terms of the Security Agreement;
(E) copies of the Assigned Agreements, if any, referred to in the Security Agreement, together with a consent to such assignments, if any, in substantially the form of Exhibit C to the Security Agreement, duly executed by each party to such Assigned Agreements other than the Borrower;
(F) certificates representing the Pledged Shares referred to in the Security Agreement, accompanied by undated stock powers executed in blank and irrevocable proxies;
(G) in the case of the Borrower's Foreign Subsidiaries (other than ▇▇▇▇▇ Insurance), all action necessary to allow the Administrative Agent to obtain a valid and enforceable, first priority, perfected security interest in 65% of the stock of each Foreign Subsidiary and a memorandum to the Administrative Agent from appropriate foreign counsel confirming that the Administrative Agent, on behalf of the Secured Parties, has obtained a valid and enforceable first priority perfected security interest in the relevant Pledged Stock or outlining the steps necessary to obtain a perfected security interest in the relevant Pledged Stock; and
(H) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first and only priority liens and security interests created under the Security Agreement has been taken. The security agreement executed and delivered pursuant to this clause (ii) by the Borrower and the Turecamo Entities, as amended, supplemented or otherwise modified from time to time in accordance with its terms, is referred to as the "BORROWER/TURECAMO SECURITY AGREEMENT".
(iii) A security agreement in substantially the form of EXHIBIT H granting to the Administrative Agent, for the ratable benefit of the Secured Parties, a first and only priority security interest in all of the Old ▇▇▇▇▇ Collateral (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the "OLD ▇▇▇▇▇ SECURITY AGREEMENT"), duly executed by the Old ▇▇▇▇▇ Entities, together with:
(A) proper, duly executed financing statements under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first and only priority Liens and security interests created under the Old ▇▇▇▇▇ Security Agreement, covering the Collateral described in the Old ▇▇▇▇▇ Security Agreement;
(B) completed requests for information, dated on or before the date of the Initial Extension of Credit, listing all effective financing statements filed that name each of the Old ▇▇▇▇▇ Entities as debtor, together with copies of such financing statements;
(C) evidence of the completion of all other recordings and filings of or with respect to the Old ▇▇▇▇▇ Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby;
(D) evidence of the insurance required by the terms of the Old ▇▇▇▇▇ Security Agreement;
(E) copies of the Assigned Agreements, if any, referred to in the Old ▇▇▇▇▇ Security Agreement, together with a consent to such assignments, if any, in substantially the form of Exhibit C to the Old ▇▇▇▇▇ Security Agreement, duly executed by each party to such Assigned Agreements other than the Old ▇▇▇▇▇ Entities;
(F) evidence that all other action that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first and only priority liens and security interests created under the Old ▇▇▇▇▇ Security Agreement has been taken.
(iv) An intellectual property security agreement in substantially the form of EXHIBIT I hereto granting to the Administrative Agent for the ratable benefit of the Lenders a first and only priority security interest in all of the Borrower's and each Turecamo Entity's intellectual property (together with each other intellectual property security agreement delivered pursuant to Section 3.4 or Section 5.13, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, each an "INTELLECTUAL PROPERTY SECURITY AGREEMENT"), duly executed by the Borrower and each Guarantor, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first and only priority Liens and security interests created under the Intellectual Property Security Agreement has been taken.
(v) A pledge agreement substantially in the form of EXHIBIT J hereto (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "BORROWER STOCKHOLDERS PLEDGE AGREEMENT") duly executed by the Borrower Stockholders pursuant to which all of the issued and outstanding capital stock of the Borrower shall be pledged to the Administrative Agent for the benefit of the Secured Parties as security for the Obligations, together with (i) the certificates representing all shares pledged thereunder, undated stock powers executed in blank and proxies with respect thereto and (ii) proper, duly executed financing statements under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary in order to perfect and protect the first and only priority Liens and security interests created under the Borrower Stockholders Pledge Agreement covering the shares pledged pursuant thereto.
(vi) A guaranty in substantially the form of EXHIBIT K (together with each other guaranty executed and delivered pursuant to Section 3.4 or Section 5.13, in each case as amended, supplemented or otherwise modified from time to time in accordance with its terms, whether one or more, the "SUBSIDIARY GUARANTY"), duly executed by the Guarantors, to the extent provided therein.
(vii) With respect to each Vessel described in Part I (Vessels owned by the Loan Parties other than the Old ▇▇▇▇▇ Entities) of Schedule 4.29, the following:
(aA) Promissory notesa Preferred Ship Mortgage covering such Vessel duly executed by the Loan Party that is the owner of such Vessel and, in connection therewith, such Vessel shall have been duly documented in the name of the Loan Party holding title thereto under the laws of the United States, such Preferred Ship Mortgage shall have been duly recorded by the United States Coast Guard, and such Preferred Ship Mortgage shall constitute a preferred mortgage on the Vessel subject thereto, subject only to existing first preferred mortgages in favor of the Administrative Agent for the benefit of the Secured Party;
(B) an assignment covering the earnings and requisition compensation, if any, of such Vessel, in form acceptable and substance satisfactory to the Administrative Agent (hereinafter sometimes referred to individually as an "EARNINGS ASSIGNMENT", and together as the "EARNINGS ASSIGNMENTS"), duly executed by the Loan Party that is the owner of such Vessel and, in connection therewith, such Loan Party shall have executed and delivered to the Administrative Agent notices of assignment and authorizations to collect insurance claims and to collect general average contributions, in such form and in such number of counterparts as may be reasonably requested by the Administrative Agent;
(C) an assignment covering the insurances of such Vessel, in form and substance satisfactory to the Administrative Agent (hereinafter sometimes referred to individually as an "INSURANCE ASSIGNMENT," and together as the "INSURANCE ASSIGNMENTS"; the Earnings Assignments and the Insurance Assignments are hereinafter sometimes referred to individually as an "ASSIGNMENT" and, together, as the "ASSIGNMENTS"), duly executed by the Loan Party that is the owner of such Vessel;
(D) copies of cover notes and certificates of entry evidencing the insurance covered by such Vessel;
(E) authorizations to inspect class records of such Vessel owned by the Loan Party that is the owner thereof, in such form and such number of counterparts as may be reasonably requested by the Administrative Agent, duly executed by such Loan Party;
(F) a true and complete copy of a certificate of ownership and encumbrance issued by the United States Coast Guard showing such Loan Party to be the sole owner of such Vessel free and clear of all Liens of record except (i) the Preferred Ship Mortgage covering such Vessel in favor of the Administrative Agent for the benefit of the Secured Parties, and (ii) the Permitted Liens;
(G) for each Vessel to the extent it is required to be maintained in class in order to operate in the service in which it is operating, the certificate of American Bureau of Shipping for such Vessel, dated not more than fourteen (14) days prior to the Closing Date, confirming that such Vessel is in such class without material recommendation (except for such recommendations which, when taken together with other recommendations for all Vessels, could not reasonably be expected to have a Material Adverse Effect);
(H) a copy of the current certificate of inspection issued by the United States Coast Guard for such Vessel, if available, and reflecting no outstanding recommendations (except for such recommendations which, when taken together with other recommendations for all Vessels, could not reasonably be expected to have a Material Adverse Effect); and
(1) written advice from J&H ▇▇▇▇▇ & McLennan, Inc., insurance brokers, of the placement of the insurances covering such Vessel; (2) written confirmation from such brokers, that they have received no notice of the assignment (except to the Administrative Agent) of the insurances or any claim covering such Vessel; (3) an opinion of such brokers to the effect that such insurance complies with the applicable provisions of this Agreement and of the Preferred Ship Mortgage covering such Vessel, where applicable; and (4) an agreement by such brokers, in form and substance satisfactory to the Administrative Agent, payable to whereunder the order insurances of each Lender that has requested such a noteVessel, and claims thereunder, will not be affected by nonpayment of premiums on any other insurances.
(bviii) Copies Certified copies of the resolutions of the Board of Directors of each Loan Party approving the Borrower approving ▇▇▇▇▇ Acquisition, this Agreement Agreement, the Notes, and each other Loan Document and ▇▇▇▇▇ Acquisition Document to which it is or is to be a party, and of all documents evidencing other necessary corporate actionaction and governmental and other third party approvals and consents, if any, with respect to the ▇▇▇▇▇ Acquisition, this Agreement, the Notes, and each other Loan Document and ▇▇▇▇▇ Acquisition Document.
(ix) A copy of the charter of each Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the Initial Extension of Credit) by the Secretary of State of the jurisdiction of its incorporation as being a true and correct copy thereof.
(x) A copy of a certificate of the Secretary of State of the jurisdiction of its incorporation, dated reasonably near the date of the Initial Extension of Credit, listing the charter of each Loan Party and each amendment thereto on file in its office and certifying that (A) such amendments are the only amendments to such Loan Party's charter on file in its office, (B) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated and in good standing under the laws of the State of the jurisdiction of its incorporation.
(xi) A copy of a certificate of the Secretary of State of each State listed on SCHEDULE 4.2, dated reasonably near the date of the Initial Extension of Credit, stating that each Loan Party is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate.
(xii) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer and/or the Secretary or an Assistant Secretary of such Loan Party, as the Borrower to case may be, dated the date of the Initial Extension of Credit (the statements made in such certificate shall be true and correct, and in full force and effect on and as of the date hereofof the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State's certificate referred to in Section 3.1(a)(xi), (B) a true and correct copy of the by-laws of such Loan Party as in effect on the date of the Initial Extension of Credit, (C) the due incorporation and good standing of such Loan Party as a corporation organized under the laws of the jurisdiction of its incorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default or an Event of Default.
(cxiii) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the date hereof, each Loan Party certifying the names and true signatures of the officers of the Borrower such Loan Party authorized to sign this Agreement Agreement, the Notes, each other Loan Document to which they are or are to be parties and the other documents to be delivered hereunderhereunder and thereunder.
(dxiv) A certificate of a Responsible Officer Such financial, business and other information regarding each Loan Party and each such Person's Subsidiaries as any of the BorrowerLenders shall have reasonably requested, dated as of the date hereofincluding, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapsewithout limitation, or both.
(e) Certified copies of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement.
(f) Certified copies of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially in the forms of Exhibit C-1 and C-2, respectively, hereto and information as to such possible contingent liabilities, tax matters, Environmental Actions, Environmental Permits, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other matters as the Issuing Bank or any Lender through the Administrative Agent may reasonably request.
(h) A favorable opinion of King & Spalding, counsel for the Administrative Agent, substantially in the form of Exhibit D hereto.arrange
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial an Advance and on the occasion of the Issuing Bank to issue its initial Letter Initial Extension of Credit shall not become effective unless and until all fees due and payable by hereunder is subject to the Borrower in connection satisfaction of the following conditions precedent before or concurrently with this Agreement have been paid and the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:
(ai) Promissory notes, in a form acceptable to A Note duly executed by the Administrative Agent, Borrower and payable to the order of each Lender that has requested such a notethe same.
(bii) Copies [Intentionally Omitted].
(iii) As to each Unencumbered Asset:
(A) [Intentionally Omitted]; and
(B) evidence satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall be in compliance with the requirements of Section 5.02(p).
(iv) This Agreement duly executed by the Loan Parties and the other parties hereto.
(v) Certified copies of the resolutions of the Board of Directors of the Borrower Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving this Agreement the transactions contemplated by the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents evidencing other necessary corporate actionaction and governmental and other third party approvals and consents, certified by if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.
(vi) A copy of a certificate of the Secretary of State (or an equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near (but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or managing member, as applicable, by its President, a Vice President, Executive Chairman or Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Borrower to Closing Date (the statements made in which certificate shall be true and correct, and in full force and effect on and as of the date hereofof the Initial Extension of Credit), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on the date of the Initial Extension of Credit, (C) the due incorporation, organization or formation and good standing or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of 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 (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes a Default.
(cix) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as each Loan Party (or Responsible Officer of the date hereof, general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the Borrower general partner or managing member of such 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.
(dx) A certificate of a Responsible Officer Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31, 2016 of the BorrowerParent Guarantor, interim financial statements dated as the end of the date hereof, certifying (i) the accuracy of the representations most recent fiscal quarter for which financial statements are available and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or boththree months then ended and financial projections for the Parent Guarantor’s consolidated operations.
(exi) Certified copies of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement[Intentionally Omitted.]
(fxii) Certified copies An opinion of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions of ▇▇Kleinberg, Kaplan, ▇▇▇▇▇ ▇. ▇▇& ▇▇▇▇▇, General Counsel of the BorrowerP.C., and of Hunton & ▇▇▇▇▇▇▇▇, New York counsel for the BorrowerLoan Parties, with respect to the matters (and in substantially the form) set forth in the forms of Exhibit C-1 and C-2, respectively, F-1 hereto and as to such other matters as the Issuing Bank or any Lender Party through the Administrative Agent may reasonably request.
(hxiii) A favorable An opinion of King & Spalding, local counsel for the Administrative AgentLoan Parties (A) from ▇▇▇▇▇▇▇ LLP in substantially the form of Exhibit F-2 hereto, (B) from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP in substantially the form of Exhibit F-3 hereto, (C) from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP in substantially the form of Exhibit F-4 hereto, and (D) a Delaware opinion in the form of Exhibit D F-5 hereto, in each case covering such other matters as any Lender Party through the Administrative Agent may reasonably request.
(xiv) A Notice of Borrowing relating to the Initial Extension of Credit and dated and delivered not less than three (3) Business Days prior to the date of the Initial Extension of Credit.
(xv) A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants.
(b) The Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender Parties.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse change in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Loan Parties since December 31, 2016.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Material Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby, and there shall have been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(g) Each Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such compliance satisfactory to the Administrative Agent.
(h) The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all reasonable, out-of-pocket expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).
(i) The Borrower and each Guarantor shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent or any Lender to comply with its “know your customer” requirements and to confirm compliance with all applicable Sanctions, Anti-Corruption Laws, the Trading with the Enemy Act and the Patriot Act, and (ii) if the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, the Borrower shall have provided to the Administrative Agent (for further delivery by the Administrative Agent to the Lenders in accordance with its customary practice) a Beneficial Ownership Certification for the Borrower; in each case delivered at least five Business Days prior to the Closing Date.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial Advance and obligations of the Issuing Bank Lenders to issue its extend credit by way of the initial Letter drawdown under the Credit Facility is subject to the fulfilment of Credit shall not become effective unless and until all fees due and payable by the Borrower in connection with this Agreement have been paid and the Administrative Agent shall have received the followingfollowing conditions precedent prior to or concurrent with, such extension of credit:
(a) Promissory notesthe conditions precedent set forth in Section 12.1 have been fulfilled;
(b) all outstanding Indebtedness of the Borrower under the Existing Credit Agreement shall have been repaid in full or arrangements satisfactory to the Administrative Agent in its sole and absolute discretion, shall have been made for the repayment of such Indebtedness concurrent with the initial drawdown hereunder and all guarantees and security documents executed and delivered in a connection therewith shall have been terminated and released;
(c) the Obligors have duly executed and delivered to the Administrative Agent this Agreement and the Guarantees, each in form acceptable and substance satisfactory to the Administrative Agent;
(d) the Administrative Agent has received, payable in form and substance satisfactory to the order Administrative Agent:
(i) a duly certified copy of the articles of incorporation, articles of amalgamation or similar documents and by-laws of each Lender that has requested such a note.Obligor;
(bii) Copies a certificate of status or good standing for each Obligor issued by the appropriate governmental body or agency of the resolutions jurisdiction in which such Obligor is incorporated;
(iii) a duly certified copy of the Board of Directors resolution of the Borrower approving this Agreement board of directors of each Obligor authorizing it to execute, deliver and all documents evidencing other necessary corporate actionperform its obligations under each Credit Documents to which such Obligor is a signatory;
(iv) a certificate of an officer of each Obligor, certified by the Secretary or an Assistant Secretary in such capacity, setting forth specimen signatures of the Borrower individuals authorized to be true and correct, and in full force and effect on and as of sign the date hereof.Credit Documents to which such Obligor is a signatory;
(cv) A a certificate of the Secretary or an Assistant Secretary a senior officer of the Borrower, dated as of the date hereofin such capacity, certifying that, to the names and true signatures best of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder.
(d) A certificate of a Responsible Officer of the Borrowerhis knowledge after due inquiry, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event Default has occurred and is continuing that constitutes an Event or would arise immediately upon the initial extension of Default or that would constitute an Event of Default but for credit under the requirement that notice be given or time elapse, or both.Credit Facility; and
(vi) requisite information to identify each Obligor under applicable “know your client” legislation;
(e) Certified copies the Administrative Agent has received, in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) an opinion of all governmental approvals counsel to each Obligor, addressed to the Credit Parties and authorizations required their counsel, relating to be obtained in connection with the executionstatus and capacity of such Obligor, the due authorization, execution and delivery and performance by the Borrower of this Agreement.
(f) Certified copies validity and enforceability of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially Credit Documents to which such Obligor is a party in the forms jurisdiction of Exhibit C-1 incorporation of such Obligor and C-2, respectively, hereto in the Province of Ontario and as to such other matters as the Issuing Lenders may reasonably request; and
(ii) an opinion of the Administrative Agent’s counsel with respect to the legality, validity and binding nature obligations of each Obligor under, and the enforceability against such Obligor of, the Credit Documents which are governed by the laws of the Province of Ontario, together with such other opinions as may reasonably be required by a Lender for the purpose of satisfying its local law and/or internal credit requirements;
(f) the Lenders shall be satisfied, acting reasonably, that all necessary approvals, acknowledgements, directions and consents have been given and that all relevant laws have been complied with in respect of all agreements and transactions referred to herein; and
(g) the Borrower shall have paid to (i) The Bank or any Lender through of Nova Scotia and Bank of Montreal, in their respective capacities as co-lead arrangers of the Credit Facility, (ii) the Administrative Agent may reasonably requestand (iii) the Lenders all fees and expenses required to be paid pursuant to the Credit Documents on or before the initial extension of credit under the Credit Facility.
(h) A favorable opinion of King & Spalding, counsel for the Administrative Agent, substantially in the form of Exhibit D hereto.
Appears in 1 contract
Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make its initial an Advance and or of the Issuing Bank to issue its initial a Letter of Credit shall not become effective unless and until all fees due and payable by on the Borrower in connection occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of each of the following conditions precedent before or concurrently with this Agreement have been paid and the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent and the Lenders, and in sufficient copies (except for the Notes), for the Administrative Agent and each Initial Lender:
(ai) Promissory notes, The Notes payable to the order of the Initial Lenders duly executed by the Borrowers.
(ii) A security agreement in a substantially the form acceptable of EXHIBIT G-1 granting to the Administrative Agent, payable for the ratable benefit of the Secured Parties, a first and only (subject to Permitted Liens) priority security interest in all of the order personal property and assets of each Lender that has requested such a note.Borrower and each Domestic Subsidiary (as hereafter amended, supplemented or otherwise modified from time to time in accordance with its terms, the "INITIAL SECURITY AGREEMENT"), duly executed by each Borrower and each Domestic Subsidiary, together with:
(bA) Copies of proper, duly executed financing statements under the resolutions of the Board of Directors of the Borrower approving this Agreement and all documents evidencing other necessary corporate action, certified by the Secretary or an Assistant Secretary of the Borrower to be true and correct, and in full force and effect on and as of the date hereof.
(c) A certificate of the Secretary or an Assistant Secretary of the Borrower, dated as of the date hereof, certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder.
(d) A certificate of a Responsible Officer of the Borrower, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse, or both.
(e) Certified copies Uniform Commercial Code of all governmental approvals and authorizations required to be obtained in connection with the execution, delivery and performance by the Borrower of this Agreement.
(f) Certified copies of the Restated Charter and By-Laws of the Borrower.
(g) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and of Hunton & ▇▇▇▇▇▇▇▇, counsel for the Borrower, substantially in the forms of Exhibit C-1 and C-2, respectively, hereto and as to such other matters as the Issuing Bank or any Lender through jurisdictions that the Administrative Agent may reasonably request.deem necessary or desirable in order to perfect and protect the first and only (subject to Permitted Liens) priority Liens and security interests created under the Initial Security Agreement, covering the Collateral described in the Initial Security Agreement;
(hB) A favorable opinion completed requests for information, dated on or before the date of King & Spaldingthe Initial Extension of Credit, counsel for listing all effective financing statements filed that name any Borrower or any Domestic Subsidiary as debtor, together with copies of such financing statements;
(C) evidence of the completion of all other recordings and filings of or with respect to the Initial Security Agreement that the Administrative AgentAgent may deem necessary or desirable in order to perfect and protect the Liens created thereby;
(D) evidence of the insurance required by the terms of the Initial Security Agreement; (E) copies of the Assigned Agreements, if any, referred to in the Initial Security Agreement, together with a consent to such assignments, if any, in substantially in the form of Exhibit D hereto.B to the Initial Security Agreement, duly executed by each party to such Assigned Agreements other than the Borrowers or Subsidiaries; (F) certificates representing the Pledged Shares referred to in the Initial Security Agreement, accompanied by undated stock powers executed in blank and irrevocable proxies (exercisable only during the continuance of an Event of Default);
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Sources: Credit Agreement (Polyvision Corp)