Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”): (a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement). (b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities). (c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date. (d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent: (i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date. (ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes. (iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation. (iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company. (v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent. (vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Credit Agreement (Td Synnex Corp)
Conditions Precedent to the Closing Date. The effectiveness of this Agreement and the obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be Lender hereunder, are subject to and conditional upon the following conditions having been satisfied or waived (precedent being fulfilled to the first such date on satisfaction of the Lender, which conditions precedent are for the sole and exclusive benefit of the Lender:
3.1.1 this Agreement and each of the following conditions have been satisfied or waivedother Transaction Documents (other than the Blocked Account Agreements, the “Closing Date”):
(a) Since March 22Deed of Hypothec, 2021the Securityholder Agreement, there has not been any effectthe Warrant Agreement, changethe Canada Warrant Agreement, eventthe certificates representing the Warrants and the Funding Direct Agreements), circumstanceincluding all notices, conditionshare certificates, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees stock transfer forms and other ancillary documents required to be paid delivered pursuant to the Security Documents, will have been executed and delivered by all parties thereto on or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by and each shall be in form and substance satisfactory to the Company) (which amounts may be offset against Lender;
3.1.2 the proceeds Lender shall have received certified copies of the FacilitiesOrganizational Documents of the Obligors and Telesat Parent, the resolutions authorizing the execution, delivery and performance of each Obligor’s and Telesat Parent’s obligations under the Loan Documents to which it is a party and the transactions contemplated herein, and certificates as to the incumbency of the officers of each Obligor and Telesat Parent;
3.1.3 the Lender shall have received certified copies of all agreements which restrict or limit the powers of any Obligor or its directors or officers not otherwise delivered under Subsection 3.1.2 of this Agreement;
3.1.4 the Lender shall have received certificates of status, compliance or good standing (or the local law equivalent)., as applicable, of each Obligor and Telesat Parent;
3.1.5 the Lender shall have received certified copies of all consents, authorizations, approvals or permissions (ceach of which shall be in full force and effect) On of any Governmental Authorities or other third parties (including in connection with the Canada Investment Agreements) required for the execution, delivery and performance of each Obligor’s and Telesat Parent’s obligations under the Transaction Documents to which it is a party and the transactions contemplated therein as of the Closing Date;
3.1.6 the Lender shall have received a currently dated Officer’s Certificate of the Borrower:
3.1.6.1 certifying the organizational chart of the Telesat Group;
3.1.6.2 attaching certified copies of the Permits listed in Schedule 6.1.17 attached hereto (as at the Closing Date);
3.1.6.3 attaching certified executed copies of the Material Project Contracts listed in Schedule 6.1.16 attached hereto (as at the Closing Date);
3.1.6.4 certifying that all of the representations and warranties contained herein and all of the representations and warranties contained in each other Loan Document are true and correct in all material respects (it being understood and agreed that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects);
3.1.6.5 certifying that no (A) Default or Event of Default, (B) “Default” or “Event of Default” (or similar terms) as defined in any Transaction Document, and (C) “Default” or “Event of Default” (or similar terms) as defined in any Core Material Project Contract, in each case, shall have occurred and be continuing on the Closing Date, the Agent nor shall have received for the account any Default or Event of each Lender a certificate signed by a duly authorized officer Default under any of the Company, dated agreements referred to in clause (A) through (C) arise as a result of the Closing or the initial Advance made on the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date ; and
Appears in 1 contract
Sources: Loan Agreement (Telesat Corp)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances Loans and of each the Issuing Bank Banks to issue Letters of Credit hereunder shall be subject to not become effective until the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been is satisfied (or waived, the “Closing Date”waived in accordance with Section 10.02):
(a) Since March 22The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or would reasonably be expected to have, either individually or in the aggregate, electronic mail transmission of a Material Adverse Effect (as defined in the Merger signed signature page of this Agreement) on the Company (as defined in the Merger that such party has signed a counterpart of this Agreement).
(b) The Company Administrative Agent shall have paid on received an opinion (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of each of (i) ▇▇▇▇▇ Day, New York counsel to the Loan Parties, in form and substance satisfactory to the Administrative Agent; and (ii) ▇▇▇▇▇ Lovells (Luxembourg), LLP, Luxembourg counsel to the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received the following items from the Loan Parties:
(i) a copy of the constitutional documents of each Loan Party;
(ii) in the case of a Luxembourg Loan Party only, (A) a copy of an excerpt from the Luxembourg Register of Commerce and Companies dated the Closing Date and (B) a copy of a certificate of non-inscription of judicial decisions (certificat de non-inscription d’une decision judiciaire) from the Luxembourg Register of Commerce and Companies dated the Closing Date;
(iii) copies of the resolutions of the board of directors of each Loan Party authorizing (i) the Transactions, (ii) the execution and delivery of the Loan Documents to which it is a party, and (iii) a specified person or persons to sign, on each Loan Party’s behalf, all fees required documents and notices to be paid pursuant to or signed in connection with the Loan Documents to which it is a party;
(iv) a specimen of the signature of, and, if applicable, incumbency certificates or powers of attorney identifying by name and title, the persons authorized to sign the Loan Documents on behalf of each Loan Party (and to make Borrowings hereunder on behalf of the Obligors) mentioned in clause (iii) above;
(v) such other documents and certificates (including organizational documents and good standing certificates (if applicable)) as the Administrative Agent may reasonably request relating to the organization, existence and good standing of the Borrower and any other legal matters relating to the Borrower, the Credit Agreement or the transactions contemplated thereby;
(vi) a copy of the notice of cancellation of the available commitments and termination of the Existing Facility Agreement sent by the Borrower to the administrative agent under the Existing Facility Agreement pursuant to Section 9.5 thereof, provided that such notice shall provide for (1) the cancellation and termination of the Existing Facility Agreement and (2) that all outstanding amounts thereunder shall have been paid in full, in each case, to occur prior to or concurrently with the Closing Date; and
(vii) a certificate, dated the Closing Date, and signed by an Authorized Officer of the Borrower, confirming satisfaction of the conditions set forth in this AgreementSection 4.01.
(d) The audited consolidated financial statements of the Borrower and its Subsidiaries for the Financial Year ended December 31, 2019 and the unaudited consolidated quarterly financial statements of the Borrower and its Subsidiaries for the Financial Quarter ended June 30, 2020, shall be publicly available for review by the Lenders;
(e) The Administrative Agent shall have received payment of all fees (and other amounts due and payable to the Administrative Agent) for its own account and for the account of the Lenders on or prior to the Closing Date, including, to the extent invoiced at least three business days five (5) Business Days prior to the Closing Date (except as otherwise reasonably agreed Date, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Company) Obligors hereunder (which amounts may be offset against the proceeds of the Facilitiesexcluding legal fees).
(cf) On The Mandated Lead Arrangers and the ESG Coordinator shall have received all fees and other amounts due and payable to the Mandated Lead Arrangers or the ESG Coordinator (as applicable), including, to the extent invoiced at least five (5) Business Days prior to the Closing Date, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Agent shall have received for Obligors hereunder (excluding legal fees).
(g) Upon the account request of each any Lender a certificate signed by a duly authorized officer of the Company, dated pursuant to Section 2.11(c) at least five (5) Business Days prior to the Closing Date, certifying to such Lender (or the occurrence Administrative Agent (or satisfaction clauses (aits counsel) and (hon such ▇▇▇▇▇▇’s behalf) shall have received a Note in the amount of this Section 3.02 substantially concurrently with the occurrence such ▇▇▇▇▇▇’s Commitment as of the Closing Date.
(dh) The Agent shall have received on or before Upon the Closing Date copies reasonable request of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 or the Administrative Agent made at least ten (10) days prior to the Closing Date.
, the Obligors shall have provided to such Lender or the Administrative Agent (ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (xas applicable) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding (including, if an Obligor qualifies as a “legal entity customer” under the Company Beneficial Ownership Regulation, a customary Beneficial Ownership Certification in respect of such Obligor) so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including the Patriot ActUSA PATRIOT Act and 95 Beneficial Ownership Regulations (collectively, to the extent reasonably requested “KYC Requirements”), in writing of the Company each case at least ten Business Days five (5) days prior to the Closing Date andDate.
Appears in 1 contract
Sources: Revolving Credit Agreement (Millicom International Cellular Sa)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders Lender to make Advances and of each Issuing Bank to issue Letters of Credit hereunder the Initial Term Loan shall be subject to the following conditions having precedent:
(a) this Agreement has been satisfied duly executed and delivered by the Borrower, each Guarantor and the Lender;
(b) the Closing Date shall occur on or waived before December 31, 2014;
(the first such date on which c) Lender shall have received each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Datedocuments, in form and substance reasonably satisfactory to the AgentLender, duly executed (to the extent applicable), and each such document shall be in full force and effect:
(i) The the Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank;
(ii) one or more Term Notes aggregating to the Lenders principal amount of the Initial Term Loan;
(iii) a certificate from the Secretary of each Credit Party (A) attesting to the extent requested resolutions of such Credit Party’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Credit Party is a party, (B) authorizing specific officers of such Credit Party to execute the same, and (C) attesting to the incumbency and signatures of such specific officers of such Credit Party;
(iv) copies of each Credit Party’s Governing Documents, as amended, modified, or supplemented to the Funding Date, certified by any Lender pursuant the Secretary of such Credit Party;
(v) a certificate of status with respect to Section 2.16 Borrower, dated not earlier than 10 days prior to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction; and
(vi) a reporting addendum (the “Reporting Addendum”) containing the information required by Sections 5.3, 5.5(a), 5.5(b), 5.6(b), 5.8, 5.12, 5.15, 5.17 and 7.1.
(iid) Certified copies The Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.5, the form and substance of which shall be satisfactory to The Lender;
(e) Borrower shall have paid all Lender Expenses incurred in connection with the transactions evidenced by this Agreement;
(f) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the resolutions Loan Document or with the consummation of the Board of Directors of transactions contemplated thereby;
(g) the Company approving representations and warranties contained in this Agreement and the Notes, other Loan Documents shall be true and of correct in all documents evidencing other necessary corporate action material respects on and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate as of the Secretary or an Assistant Secretary date of the Company certifying the names such extension of credit, as though made on and true signatures as of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching such date (x) the charter and by-laws of the Company certified, except to the extent applicablethat such representations and warranties relate solely to an earlier date);
(h) no Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) nor shall either result from the applicable state governmental authority of the Company’s jurisdiction of incorporation.making thereof;
(ivi) A customary opinion no injunction, writ, restraining order, or other order of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇any nature restricting or prohibiting, counsel to directly or indirectly, the Company.extending of such credit shall have been issued and remain in force by any Governmental Authority against any Credit Party, the Lender, or any of their Affiliates; and
(vj) The Agent no Material Adverse Change shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solventoccurred.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Loan and Security Agreement (Atlanticus Holdings Corp)
Conditions Precedent to the Closing Date. The obligations effectiveness of this Third Amended and Restated Credit Agreement, and the Lenders obligation of each Lender to make Advances and an Advance or of each any Issuing Bank to issue Letters a Letter of Credit hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waivedCredit, the “Closing Date”):
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date., is subject to the satisfaction of the following conditions precedent:
(da) The Administrative Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Datesuch day (unless otherwise specified), in form and substance reasonably satisfactory to the AgentJoint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders to the extent timely requested by any Lender such Lenders, pursuant to Section 2.16 prior to the Closing Date2.16.
(ii) The Administrative Agent shall have received a copy of (A) this Agreement, (B) the Subsidiary Guaranty,(C) the Security Agreement, and (D) the Subordinated Intercompany Note, in each case duly executed and delivered by each party thereto.
(iii) Certified copies of (A) the resolutions of the Board board of Directors directors or of the Company members or managers of each Loan Party approving this Agreement the Transaction and the Noteseach Loan Document to which it is or is to be a party, and of (B) all documents evidencing other necessary corporate action and governmental approvalsand other third party approvals and consents, if any, with respect to this Agreement the Transaction and the Noteseach Loan Document to which it is or is to be a party.
(iiiiv) A copy of a certificate of the Secretary of State of the jurisdiction of incorporation or organization of each Loan Party, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s Organizational Documents on file in such Secretary’s office, (2) if applicable, 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 or presently subsisting 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 jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Closing Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity 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 a Responsible Officer, dated the date of the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the Organizational Documents of such Loan Party since the date of the Secretary or an Assistant Secretary of State’s certificate referred to in Section 3.01(a)(iv), (B) a true and correct copy of the Company bylaws or operating agreement, as applicable, of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(iii) were adopted and on the date of the Closing Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company 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, and (D) with respect to the certificate of the Borrower only (x) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Closing Date and (y) the absence of any event occurring and continuing, or resulting from the Closing Date, that constitutes a Default.
(vii) A certificate of a Responsible Officer of each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes each Loan Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(viii) Certified copies of each of the Related Documents, duly executed by the parties thereto and attaching in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request.
(ix) A solvency certificate, in substantially the form of Exhibit F, attesting to the Solvency of the Borrower and its Consolidated Subsidiaries, taken as a Consolidated whole, both before and after giving effect to the Transaction, from the Chief Financial Officer of the Borrower.
(x) Audited annual financial statements dated December 31, 2017, interim financial statements dated the charter and by-laws end of the Company certifiedmost recent fiscal quarter for which financial statements are available, pro forma Consolidated financial statements as to the extent applicableBorrower and its Subsidiaries and forecasts prepared by management of the Borrower, as of a recent date by the applicable state governmental authority in form and (y) a good standing certificate (substance satisfactory to the extent such concept exists) from Administrative Agent and the applicable state governmental authority Joint Lead Arrangers, of balance sheets, income statements and cash flow statements on an annual basis for each year following the Company’s jurisdiction of incorporationClosing Date until the Termination Date.
(ivxi) [Reserved].
(xii) A customary favorable opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, LLP counsel to for the Company.
(v) The Agent shall have received a certificateLoan Parties, in substantially in the form of Exhibit E heretoG hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request, from and, if applicable, a favorable opinion of appropriate local counsel to the chief financial officer Loan Parties.
(xiii) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.13 hereof.
(b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the Borrower certifying that charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization.
(c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in each case free and its Subsidiaries clear of any Lien other than Liens created under the Loan Documents.
(d) The Administrative Agent and the Joint Lead Arrangers 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 a consolidated basis after terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers.
(e) Before giving effect to the Transactions are solventTransaction, there shall have occurred no Material Adverse Change since December 31, 2017.
(vif) 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 (xi) could reasonably be expected 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 Transaction Document or the consummation of the Transaction, and there shall have been no adverse change in the status, 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.
(g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction.
(h) The Borrower shall have paid (i) all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and the Administrative Agent, and local counsel to the Lender Parties), and (ii) all accrued and unpaid interest, fees, expenses, and reimbursement Obligations pursuant to the terms of the Existing Credit Agreement or otherwise due in respect of the Existing Credit Facilities.
(i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Closing Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full (or, at the election of the applicable Existing Lenders which are also Initial Lenders hereunder, outstanding advances exchanged for Advances, pursuant the applicable provisions of Section 2.01 hereof). The commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated.
(j) The Lenders shall have received evidence that all insurance required to be maintained pursuant to Section 5.01 hereof has been obtained and is in effect, together with all certificates of insurance corresponding thereto, which certificates shall name the Collateral Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be.
(k) Each of the Security Agreement and the Subsidiary Guaranty shall be in full force and effect, duly executed by and enforceable against (i) the Borrower, in the case of the Security Agreement, and (b) each Subsidiary of the Borrower that is required to be a party thereto pursuant to the terms of this Agreement, in the case of the Security Agreement and the Subsidiary Guaranty.
(l) The Borrower shall be in compliance with Section 1 of the Security Agreement and shall otherwise be in compliance with all of the terms and conditions set forth in the Security Agreement. Each Subsidiary that is required pursuant to the terms of this Agreement to be a party to the Security Agreement and the Subsidiary Guaranty shall be in compliance with Section 1 of the Security Agreement and Section 1 of the Subsidiary Guaranty and shall otherwise be in compliance with all of the terms and conditions set forth in the Security Agreement and the Subsidiary Guaranty.
(m) The Administrative Agent (or the Administrative Agent’s counsel, on its behalf) shall have received certified copies of UCC, tax, litigation and judgment lien searches, or, if applicable, equivalent searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches as the Administrative Agent may reasonably request.
(n) The Administrative Agent (or the Administrative Agent’s counsel, on its behalf) shall have received evidence of the completion of all other recordings and filings of or with respect to the Security Agreement and the taking of all other actions that the Administrative Agent and the Collateral Agent may deem necessary or desirable in order to perfect and maintain the Liens on the Collateral created thereby.
(o) The Administrative Agent and the Lender Parties shall have received, at least three five (5) Business Days prior to the Closing Date, an executed Certificate of Beneficial Ownership (in form and substance acceptable to the Administrative Agent and each Lender Party), and all other documentation and other information reasonably requested at least ten (10) days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since March 22November 30, 20212023, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement)Effect.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary a Responsible Officer of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority Governmental Authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority Governmental Authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Credit Agreement (Td Synnex Corp)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be available its respective Commitment is subject to the following conditions having been satisfied or waived (the first such date on which satisfaction of each of the following conditions have been satisfied or waived, the “Closing Date”):precedent:
(a) Since March 22The Agents and the Lenders have received each of the following, 2021in each case in form and substance satisfactory to the Agents and the Lenders:
(i) each Credit Document required by the Lenders in their sole discretion to be delivered on the Closing Date, there has not executed and delivered by each of the parties thereto;
(ii) judgment lien, tax lien and UCC searches, and such other searches of the records of Government Instrumentalities as the Lenders may require, performed with respect to Borrower and the Affiliates in all relevant jurisdictions;
(iii) the legal opinion of Borrower's Counsel in the form of Exhibit 3.1
(a) (iii);
(iv) the legal opinion of Lenders' Counsel;
(v) such other legal opinions as the Agents or the Lenders may require;
(vi) certified copies of:
(A) the Organizational Documents of Guarantor, NEO, Borrower and the Affiliates;
(B) good standing certificates with respect to Guarantor, NEO, Borrower and the Affiliates dated no earlier than thirty (30) days before the Closing Date;
(C) incumbency certificates for the signatories of Guarantor, NEO, Borrower and the Affiliates and resolutions of Guarantor, NEO, Borrower and the Affiliates approving the Documents and the transactions contemplated thereby;
(D) unaudited financial statements of NEO for the fiscal year ended December 31, 1996 and all subsequent quarterly financial statements available on the Closing Date, audited financial statements of Borrower for the fiscal year ended December 31, 1996 and all subsequent quarterly financial statements available on the Closing Date, and pro forma balance sheets of the Affiliates as of the Closing Date; and
(E) all Project Documents in effect on the Closing Date and which are listed in Schedule I as having been any executed;
(vii) certificates of officers of Guarantor, NEO, Borrower and each Affiliate certifying that:
(A) all Documents executed by such Person on or prior to the Closing Date are in full force and effect, changesuch Person and, eventto the best knowledge of such Person after due inquiry, circumstancethe Project Parties are in compliance with all covenants and provisions thereof, conditionand no breach or event of default (or any event that would become a breach or event of default with the giving of notice or passage of time or both) has occurred and is continuing under any such Document;
(B) all representations and warranties of such Person contained in the Documents are true, occurrence correct and complete;
(C) all financial statements and information relating to such Person provided to the Lenders, taken as a whole, are true, correct and complete; each balance sheet fairly presents the financial position of the Person to which it relates as at the date indicated and was prepared in accordance with GAAP except as specifically noted therein; no material adverse change in the condition or development that operation, financial or otherwise, of such Person has occurred since July 31, 1997; and the financial statements (including any notes thereto) provided to the Lenders disclose all liabilities, contingent or otherwise, of such Person; and
(D) no act, event or circumstance has occurred with respect to the Projects or such Person or, to the best knowledge of such Person after due inquiry, the Project Parties which has had or would could have a Material Adverse Effect or a material adverse effect on the availability or pricing of financing for the Projects;
(viii) [RESERVED]
(ix) copies of all Required Approvals obtained on or prior to the Closing Date by or on behalf of Borrower or the Affiliates;
(x) a written report of the Engineer opining favorably, to the best of the Engineer's knowledge and except as otherwise noted in such report, on the relevant technical aspects of the Projects, except as otherwise noted in the report, including without limitation historical and projected Project availability and useful life, projected operation and maintenance costs (including, that the costs of operation and maintenance of the Projects, as detailed in the Closing Pro Forma are consistent with market practice), maintenance plans and schedules, terms of the Project Documents, Required Approvals, expected landfill gas production, expected availability, net capacity degradation (if any), the ability of the Projects to comply with all conditions contained in the Required Approvals, that there is no event or anticipated event that could reasonably be expected to have, either individually or cause any Project not to be completed by the date contemplated in the aggregate, a Material Adverse Effect Construction and Draw Schedules and landfill gas collection efficiencies;
(as defined xi) the favorable written report of the Energy Consultant confirming the energy price and capacity payment assumptions contained in the Merger Closing Pro Forma; and
(xii) the favorable written report of the Insurance Consultant confirming compliance by Borrower and the Affiliates, except as noted therein, with all requirements relating to Required Insurance contained in this Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall No act, event or circumstance has occurred (i) with respect to the Projects, Guarantor, NEO, Borrower or the Affiliates, (ii) in the international financial markets or (iii) otherwise which has had or could reasonably be expected to have paid a material adverse effect on the Closing Date all fees required to be paid pursuant to availability or in connection with this Agreement, to pricing of financing for the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities)Projects.
(c) On All Taxes, fees and expenses required to be paid by Borrower and the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received Affiliates on or before the Closing Date copies have been paid.
(d) Guarantor, NEO, Borrower and the Affiliates have appointed the Process Agent to serve as process agent until the Term Loan Maturity Date and the Process Agent has accepted such appointment in writing, and a copy of such acceptance has been delivered to the Agent.
(e) The Lenders have prepared and analyzed the Closing Pro Forma incorporating the results of the followingLenders' due diligence based on information provided by Borrower and the reports of the Lenders' counsel, each dated the Closing DateEngineer and the Energy Consultant and the terms and conditions imposed by the Project Documents, showing annual Net Operating Cash available for debt service on the Term Loans sufficient (in form the Lenders' sole determination) to produce an annual debt service coverage ratio of at least 1.5 to 1 (on a per Project basis as well as for all Projects taken together) and substance reasonably for Borrower to comply with the financial covenants of this Agreement, including maintenance of the Minimum Coverage Ratio.
(f) The Organizational Documents of Borrower and the Affiliates contain bankruptcy-remote provisions satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing DateLenders.
(iig) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement All Documents executed by Guarantor, NEO, Borrower and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary Affiliates on or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date are in full force and effect, Guarantor, NEO, Borrower, the Affiliates and the Project Parties are in full compliance with all documentation covenants and provisions thereof, and no breach or event of default (or any event that could become a breach or event of default with the giving of notice or passage of time or both) has occurred and is continuing under any such Document.
(h) All representations and warranties of Guarantor, NEO, Borrower and the Affiliates contained in the Documents are true, correct and complete.
(i) There is no pending or threatened litigation, investigation or other information regarding proceeding (i) relating to any Project (including without limitation relating to the Company requested release of any Hazardous Substance or any contingent liability of Borrower, the Affiliates, the Project Parties or the Projects in connection with applicable “know your customer” and anti-money laundering rules and regulationsthe release of any Hazardous Substance) or (ii) that could materially adversely affect the condition (financial or otherwise) of Guarantor, including NEO, Borrower, the Patriot ActAffiliates or the Project Parties or their ability to perform under the documents, other than the bankruptcy proceedings relating to the extent reasonably requested in writing EPC Contractor of the Company at least ten Business Days prior to Edgeboro Project and the pre-petition liens relating thereto.
(j) A First-Priority security interest in the Collateral that is the subject of the Security Documents in effect as of the Closing Date andhas been created and perfected, and will continue to be perfected, in favor of the Lenders in all relevant jurisdictions, and there are no Liens on the Collateral other than Permitted Liens. The Term Agent has received all items of Collateral in which a security interest is perfected by possession, including stock certificates and stock powers relating thereto.
(k) No Project has suffered a material loss (unless such Loss has been remedied to the satisfaction of the Lenders) or is subject to pending or threatened condemnation or appropriation proceedings.
(l) The operations of Borrower, the Projects and the Affiliates comply and will comply, in all respects deemed material by the Lenders (including without limitation that the Projects will be able to meet the financial and construction progress projections contained in the Closing Pro Forma), with all Applicable Laws and Required Approvals.
(m) No order, judgment or decree of any Government Instrumentality enjoins or restrains any Agent or any Lender from entering into and performing its obligations under this Agreement.
Appears in 1 contract
Sources: Construction, Acquisition and Term Loan Agreement (NRG Energy Inc)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit Closing Date hereunder shall be is subject to the following conditions having been satisfied condition precedent that the Company and the Administrative Agent (as the Company’s assignee) shall have received, on or waived (before the first such date on which each of the following conditions have been satisfied or waivedClosing Date, the “following, each (unless otherwise indicated) dated the Closing Date”, and each in form and substance reasonably satisfactory to the Company and the Administrative Agent (as the Company’s assignee):
(a) Since March 22A copy of the resolutions or written consent of the board of directors or managers or other equivalent governing body of each Originator approving the Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, 2021, there has not been any effect, change, event, circumstance, condition, occurrence certified by the Secretary or development that has had Assistant Secretary (or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreementequivalent) on the Company (as defined in the Merger Agreement).of such Originator;
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to Good standing certificates, or in connection with this Agreementan equivalent certificate, for each Originator issued as of a recent date reasonably acceptable to the extent invoiced at least three business days prior to Company and the Closing Date Administrative Agent (except as otherwise reasonably agreed the Company’s assignee) by the Company) (which amounts may be offset against the proceeds Secretary of State, or other equivalent authority, of the Facilities).jurisdiction of such Originator’s organization;
(c) On A certificate of the Closing DateSecretary or Assistant Secretary (or equivalent) of each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign the Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Company and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of (as the Company’s assignee) may conclusively rely until such time as the Servicer, dated the Closing Date, certifying to Company and the occurrence or satisfaction clauses Administrative Agent (aas the Company’s assignee) and (h) shall receive from such Person a revised certificate meeting the requirements of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.clause (c));
(d) The Agent shall have received certificate or articles of incorporation, certificate of formation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State, or other equivalent authority, of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement, or equivalent governing document of such Originator (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary (or equivalent) of such Originator;
(e) The forms of financing statements (Form UCC-1) that name each Originator as the debtor/seller and the Company as the buyer/assignor (and the Administrative Agent, for the benefit of the Secured Parties, as secured party/assignee) of the Receivables sold or contributed by such Originator as may be necessary or, in the Company’s or the Administrative Agent’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company’s ownership interest in all Receivables and Related Rights (including, without limitation, Related Security) in which an ownership or security interest has been assigned to the Company hereunder;
(f) Written lien search results listing all effective financing statements that name the Originators as debtors or sellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or before prior to the Closing Date copies Initial Funding Date), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Company hereunder), and tax and judgment lien search results showing no evidence of such liens filed against any Originator;
(g) Favorable opinions of counsel to the following, each dated the Closing DateOriginators, in form and substance reasonably satisfactory to the Company, the Administrative Agent (as the Company’s assignee), and each Group Agent:;
(h) A Subordinated Note in favor of each Originator, duly executed by the Company; and
(i) The Notes Evidence of (i) the execution and delivery by each Originator and the Company of each of the other Transaction Documents to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
be executed and delivered in connection herewith; and (ii) Certified copies that each of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, conditions precedent to the extent applicableexecution, as delivery and effectiveness of a recent date by the applicable state governmental authority and (y) a good standing certificate (such other Transaction Documents has been satisfied to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
and the Administrative Agent’s (iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to as the Company’s assignee) satisfaction.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations of This agreement shall become effective upon the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be subject to the following conditions having been satisfied prior or waived (the first such date on which each concurrent fulfillment or waiver of the following conditions have been satisfied or waived, precedent (the “Closing DateEffective Time”):), subject to the Limited Conditionality Provisions:
(a) Since March 22this Agreement shall have been duly executed and delivered by each of the Borrower, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in Administrative Agent and the Merger Agreement) on the Company (as defined in the Merger Agreement).Lenders;
(b) The Company the Prepaid Metals Agreements shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed been executed and delivered by the Company) (which amounts may be offset against Borrower and the proceeds of applicable Qualified Risk Management Lenders party thereto concurrently with the Facilities).Effective Time;
(c) On the Closing Date, Administrative Agent and the Agent Borrower shall have received executed and delivered a closing memo outlining the sequencing for the account of each Lender a certificate signed by a duly authorized officer closing of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition and the flow of funds specified in Section 2.2 of the ▇▇▇, counsel to the Company.▇▇▇▇▇▇▇▇ Purchase Agreement;
(vd) The the Administrative Agent shall have received received:
(i) an executed acknowledgement and confirmation agreement, in form and substance satisfactory to the Administrative Agent, from each of the Obligors, as to the continuing effectiveness of the Guarantees and Security Documents delivered by such Obligor under the Credit Agreement;
(ii) a certificate of each of the Obligors certifying (A) as to its constating documents (copies of which are attached to that certificate), substantially (B) a copy of the resolution of the board of directors or managers of each Obligor authorizing it to execute, deliver and perform its obligations under this Agreement and a confirmation agreement to which such Obligor is a signatory, and (C) a list of its officers and directors with specimens of the signatures of those who are executing this Agreement, and all other Credit Documents entered into on the date of this Agreement, on its behalf;
(iii) a certificate of status, compliance, good standing or similar certificate for the jurisdiction of incorporation of each of the Canadian Obligors and for each jurisdiction where such Obligor carries on business, to the extent applicable; and
(iv) an opinion of counsel to each Obligor, addressed to the Administrative Agent and the Lenders relating to the status and capacity of such Obligor, the due authorization, execution and delivery and the legality, validity, binding nature and enforceability of this Agreement and Credit Documents executed by such Obligor as of the Closing Date, in the form jurisdiction where the Secured Assets are located and/or the jurisdiction of Exhibit E hereto, from incorporation or formation of such Obligor and such other matters as the chief financial officer Administrative Agent may reasonably request;
(e) the Administrative Agent must have received payment of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect all fees payable to the Transactions are solvent.
(vi) (x) at least three days prior to Administrative Agent, the Closing Date all documentation and other information regarding the Company requested Lenders or any of them in connection with this Agreement (including, for certainty, the fees under the ▇▇▇▇▇▇▇▇▇▇▇ Fee Letter), and the reimbursement of all documented expenses incurred and reimbursable by the Borrower pursuant to Section 8.5(a) including legal fees, or arrangements satisfactory to the Administrative Agent for the payment of such fees and expenses shall have been made;
(f) each Obligor shall have duly executed and delivered to the Administrative Agent each of the Credit Documents to which it is a party, including the Post-Closing Undertaking and the Credit Documents referenced in Schedule I hereto (which, in the case of previously executed Credit Documents shall be limited to a Confirmation delivered in respect thereof from each applicable Obligor and such other amendments deemed necessary or advisable by the Administrative Agent’s counsel, acting reasonably, having regard for the increased credit and extended term hereunder) in form and substance satisfactory to the Administrative Agent;
(g) the Administrative Agent has received:
(i) certificates representing all of the issued and outstanding Shares of the Obligors (other than the Borrower, ▇▇▇▇▇▇▇▇▇▇▇ TargetCo, ▇▇▇▇▇▇▇▇▇▇▇ Amalco and ▇▇▇▇▇▇▇▇▇▇▇ AcquireCo) and only to the extent such shares are certificated, duly endorsed in blank or accompanied by an executed stock transfer power of attorney;
(ii) certified true and complete copies of the ▇▇▇▇▇▇▇▇▇▇▇ Purchase Agreement, including all amendments thereto in effect as of the Closing Date; and
(iii) requisite information to identify the Obligors under the applicable “know your customerclient” legislation, Anti-Corruption Laws and antiAnti-money laundering rules Money Laundering and regulationsTerrorism Legislation, including delivered sufficiently in advance for each Lender to complete such identification;
(h) except as otherwise provided in the Patriot Actrelevant Security Documents, and subject to the extent reasonably requested Post-Closing Undertaking, all documents and instruments shall have been properly registered, recorded and filed in writing all places which, searches shall have been conducted in all jurisdictions which, and deliveries of all consents, approvals, directions, acknowledgements, undertakings and non-disturbance agreements contemplated herein, negotiable documents of title, ownership certificates and other documents and instruments to the Administrative Agent shall have been made which, in the opinion of the Company at least ten Business Days prior Administrative Agent’s counsel, acting reasonably, are required to make effective the Security created or intended to be created by the Canadian Obligors in favour of the Administrative Agent pursuant to the Closing Date andSecurity Documents governed by Canadian Applicable Laws and to ensure the perfection and the intended priority (subject to Permitted Liens) of such Security.
Appears in 1 contract
Sources: Credit Agreement (Orla Mining Ltd.)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to issue Letters Issue each Letter of Credit hereunder Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions having been satisfied precedent in each case on or waived (the first such date on which each of the following conditions have been satisfied or waivedprior to December 31, the “Closing Date”):2020:
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement)The Effective Date shall have occurred.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, following in form and substance reasonably satisfactory to the Agent:
(i) The Notes notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 2.16 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iiiii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the Company approving this Agreement type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Noteseffect).
(iiiiv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of the Company each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes each Loan Document to which it is a party and the other documents to be delivered hereunder, and attaching hereunder (x) the charter and by-laws of the Company certified, or certifying no change to the extent applicable, as of a recent date by certificate delivered on the applicable state governmental authority and (y) a good standing certificate (Effective Date pursuant to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporationSection 5.01(a)(v)).
(ivvi) A customary favorable opinion of Pillsbury WintWachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Potter, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the CompanyLoan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vvii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries..
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a certificateBorrowing Base Certificate dated the Closing Date, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect relating to the Transactions are solventFiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit Closing Date hereunder shall be is subject to the following conditions having been satisfied condition precedent that the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) shall have received, on or waived before the Closing Date, the following, each (the first such date on which each unless otherwise indicated) dated as of the following conditions have been satisfied or waivedClosing Date, and each in form and substance reasonably satisfactory to the Buyer, the “Closing Date”Borrower and the Administrative Agent (as the Borrower’s assignee):
(a) Since March 22A copy of the resolutions or written consent of the board of directors or managers or other equivalent governing body of each Originator approving this Agreement and the other Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, 2021, there has not been any effect, change, event, circumstance, condition, occurrence certified by the Secretary or development that has had Assistant Secretary (or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreementequivalent) on the Company (as defined in the Merger Agreement).of such Originator;
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to Good standing certificates, or in connection with this Agreementan equivalent certificate, for each Originator issued as of a recent date reasonably acceptable to the extent invoiced at least three business days prior to Buyer, the Closing Date Borrower and the Administrative Agent (except as otherwise reasonably agreed the Borrower’s assignee) by the Company) (which amounts may be offset against the proceeds Secretary of State, or other equivalent authority, of the Facilities).jurisdiction of such Originator’s organization;
(c) On A certificate of the Closing DateSecretary or Assistant Secretary (or equivalent) of each Originator certifying the names and true signatures of the officers authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) may conclusively rely until such time as the Servicer, the Buyer, the Borrower and the Administrative Agent (as the Borrower’s assignee) shall have received for receive from such Person a revised certificate meeting the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) requirements of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.clause (c));
(d) The Agent shall have received certificate or articles of incorporation, certificate of formation or other organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State, or other equivalent authority, of the jurisdiction of such Originator’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement, or equivalent governing document of such Originator (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary (or equivalent) of such Originator;
(e) The forms of financing statements (Form UCC-1) that name each Originator as the debtor/seller and the Buyer as the buyer/assignee of the Receivables sold by such Originator as may be necessary or, in the Buyer’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership interest in all Receivables and Related Rights (including, without limitation, Related Security) in which an ownership or security interest has been assigned to the Buyer hereunder;
(f) Written lien search results listing all effective financing statements that name the Originators as debtors or sellers and that are filed in each Originator’s jurisdiction of organization, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or before prior to the Closing Date copies Initial Funding Date), shall cover any Receivable or any Related Rights which are to be sold to the Buyer hereunder), and tax and judgment lien search results showing no evidence of such liens filed against any Originator;
(g) Favorable opinions of counsel to the following, each dated the Closing DateOriginators, in form and substance reasonably satisfactory to the Buyer, the Borrower, the Administrative Agent (as the Borrower’s assignee), and each Group Agent:;
(h) [Reserved]; and
(i) The Notes Evidence of (i) the execution and delivery by each Originator and the Buyer of this Agreement and each of the other Transaction Documents to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
be executed and delivered in connection herewith; and (ii) Certified copies that each of the resolutions conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Board of Directors of Buyer’s, the Company approving this Agreement Borrower’s and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and Administrative Agent’s (as the NotesBorrower’s assignee) satisfaction.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Receivables Purchase Agreement (Exact Sciences Corp)
Conditions Precedent to the Closing Date. The obligations effectiveness of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be this Agreement is subject to satisfaction of the following conditions having been satisfied or waived precedent:
(the first such date on which a) Administrative Agent shall have received each of the following conditions have been satisfied or waiveddocuments, the “Closing Date”):
duly executed, each (aunless otherwise specified below) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on dated the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the AgentAdministrative Agent and each Lender:
(i) The Notes duly executed counterparts of this Agreement, sufficient in number for distribution to the Lenders to the extent requested by any Administrative Agent, each Lender pursuant to Section 2.16 prior to the Closing Date.and Borrower;
(ii) Certified duly executed Guaranty Agreement;
(iii) certified copies of (A) the Constituent Documents, if any (including any amendments or supplements thereto) of each Loan Party, (B) the resolutions authorizing and approving the making and performance by each Loan Party of this Agreement, the Board of Directors of the Company approving this Agreement Pledge Agreement, and the Notesother Loan Documents to which such Loan Party is a party and the Loans hereunder, and of all (C) documents evidencing all other necessary corporate action company action, governmental approvals and governmental approvalsthird-party consents, if any, with respect to this Agreement Agreement, the Pledge Agreement, and the Notes.any other Loan Document;
(iiiiv) A a certificate of the Secretary or an Assistant Secretary of the Company each Loan Party certifying the names and true signatures of the officers Responsible Officers of the Company such Loan Party authorized to sign this Agreement, the Pledge Agreement and the Notes and the any other documents Loan Document required to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, hereunder to the extent applicable, as of which such Loan Party is a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.party;
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.[Reserved]
(vi) certificates evidencing the good standing of each Loan Party in its jurisdiction of formation dated a date not earlier than ten (x10) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date as to the good standing of such Loan Party;
(vii) an opinion of Delaware, Colorado and New York counsel to the Loan Parties covering the following matters: legal existence and good standing, power, authorization and execution, capacity, enforceability, non-contravention (corporate, contractual and legal), governmental approval, compliance with margin regulations and the Investment Company Act; and
(viii) the results of tax, judgment and Lien searches with respect to Borrower and Rentech Development Corporation in Delaware and with respect to Guarantor in Colorado.
(b) [Reserved]
(c) [Reserved]
(d) Any fees required to be paid on or before the Closing Date, including, without limitation, the Agency Fee and fees and expenses of counsel to Administrative Agent and Lenders, shall have been paid.
(e) Borrower shall have provided each Lender with a completed and executed Form G-3 issued by the Federal Reserve System.
(f) [Reserved]
(g) Administrative Agent shall have received evidence that the Credit Agreement dated as of September 23, 2013 among Borrower, Credit Suisse AG, Cayman Islands Branch, as Administrative Agent and lender, and the other lenders party thereto (the “Existing Credit Agreement”) shall have been repaid in full or otherwise satisfied and extinguished and all commitments and agreements relating thereto terminated, including a duly executed customary payoff letter, appropriately completed UCC-3 termination statements and such other documentation as may be requested to evidence such repayment or termination.
(h) Each of the Subscription Agreement between Guarantor, the purchasers party thereto and the purchasers’ representative party thereto (the “Subscription Agreement”), each Put Option Agreement between Put Pledgor and the applicable optionee party thereto, the Pledge Agreement between Put Pledgor and Credit Suisse AG, Cayman Islands Branch (the “Put Pledge Agreement”), the Custody and Control Agreement between Put Pledgor and the secured party and custodian party thereto in connection with the Put Pledge Agreement, the Amended and Restated Limited Liability Company Agreement of Put Pledgor, the Articles of Amendment to the Articles of Incorporation of Guarantor (setting forth the preferences, limitations and relative rights of Guarantor’s Series E Convertible Preferred Stock), as filed with the Secretary of State of the State of Colorado on the date hereof pursuant to the Subscription Agreement, and the Registration Rights Agreement between Guarantor and (collectively, the “Preferred Equity Documents”) shall have been duly executed and the transactions contemplated thereby duly consummated.
(i) Administrative Agent shall have received a 2014 annual consolidated budget for Guarantor and its Subsidiaries (other than the Issuer Entities).
(j) Administrative Agent shall have received a pro forma consolidated balance sheet for Guarantor and a pro forma balance sheet for Borrower, each as of December 31, 2013 and after giving effect to the transactions contemplated hereby and by the Preferred Equity Documents, which balance sheets shall have been prepared in good faith by Guarantor and Borrower, as applicable, and shall not be materially inconsistent with the forecasts previously provided to Administrative Agent.
(k) Each of the representations and warranties contained in Article IV herein and in the other Loan Documents shall be true and correct on and as of the Closing Date.
(l) No event shall have occurred which constitutes a Default or an Event of Default.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances Loans and of each the Issuing Bank Banks to issue Letters of Credit hereunder shall be subject to not become effective until the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been is satisfied (or waived, the “Closing Date”waived in accordance with Section 10.02):
(a) Since March 22The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or would reasonably be expected to have, either individually or in the aggregate, electronic mail transmission of a Material Adverse Effect (as defined in the Merger signed signature page of this Agreement) on the Company (as defined in the Merger that such party has signed a counterpart of this Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Administrative Agent shall have received for an opinion (addressed to the account of each Lender a certificate signed by a duly authorized officer of Administrative Agent and the Company, Lenders and dated the Closing Date) of each of (i) ▇▇▇▇▇ Day, certifying New York counsel to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing DateLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
; and (ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇(Luxembourg), LLP, Luxembourg counsel to the CompanyLoan Parties, in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received the following items from the Loan Parties:
(i) a copy of the constitutional documents of each Loan Party;
(ii) in the case of a Luxembourg Loan Party only, (A) a copy of an excerpt from the Luxembourg Register of Commerce and Companies dated the Closing Date and (B) a copy of a certificate of non-inscription of judicial decisions (certificat de non-inscription d’une décision judiciaire) from the Luxembourg Register of Commerce and Companies dated the Closing Date;
(iii) copies of the resolutions of the board of directors of each Loan Party authorizing (i) the Transactions, (ii) the execution and delivery of the Loan Documents to which it is a party, and (iii) a specified person or persons to sign, on each Loan Party’s behalf, all documents and notices to be signed in connection with the Loan Documents to which it is a party;
(iv) a specimen of the signature of, and, if applicable, incumbency certificates or powers of attorney identifying by name and title, the persons authorized to sign the Loan Documents on behalf of each Loan Party (and to make Borrowings hereunder on behalf of the Obligors) mentioned in clause (iii) above;
(v) The such other documents and certificates (including organizational documents and good standing certificates (if applicable)) as the Administrative Agent may reasonably request relating to the organization, existence and good standing of the Borrower and any other legal matters relating to the Borrower, the Credit Agreement or the transactions contemplated thereby;
(vi) a copy of the notice of cancellation of the available commitments and termination of the Existing Facility Agreement sent by the Borrower to the administrative agent under the Existing Facility Agreement pursuant to Section 9.5 thereof, provided that such notice shall provide for (1) the cancellation and termination of the Existing Facility Agreement and (2) that all outstanding amounts thereunder shall have received been paid in full, in each case, to occur prior to or concurrently with the Closing Date; and
(vii) a certificate, substantially in dated the form of Exhibit E heretoClosing Date, from the chief financial officer and signed by an Authorized Officer of the Borrower certifying that Borrower, confirming satisfaction of the conditions set forth in this Section 4.01.
(d) The audited consolidated financial statements of the Borrower and its Subsidiaries on a for the Financial Year ended December 31, 2019 and the unaudited consolidated basis after giving effect quarterly financial statements of the Borrower and its Subsidiaries for the Financial Quarter ended June 30, 2020, shall be publicly available for review by the Lenders;
(e) The Administrative Agent shall have received payment of all fees (and other amounts due and payable to the Transactions are solventAdministrative Agent) for its own account and for the account of the Lenders on or prior to the Closing Date, including, to the extent invoiced at least five (5) Business Days prior to the Closing Date, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Obligors hereunder (excluding legal fees).
(vif) The Mandated Lead Arrangers and the ESG Coordinator shall have received all fees and other amounts due and payable to the Mandated Lead Arrangers or the ESG Coordinator (xas applicable), including, to the extent invoiced at least five (5) Business Days prior to the Closing Date, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Obligors hereunder (excluding legal fees).
(g) Upon the request of any Lender pursuant to Section 2.11(c) at least three five (5) Business Days prior to the Closing Date, such Lender (or the Administrative Agent (or its counsel) on such ▇▇▇▇▇▇’s behalf) shall have received a Note in the amount of such ▇▇▇▇▇▇’s Commitment as of the Closing Date.
(h) Upon the reasonable request of any Lender or the Administrative Agent made at least ten (10) days prior to the Closing Date all Date, the Obligors shall have provided to such Lender or the Administrative Agent (as applicable) the documentation and other information regarding (including, if an Obligor qualifies as a “legal entity customer” under the Company Beneficial Ownership Regulation, a customary Beneficial Ownership Certification in respect of such Obligor) so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations, including the Patriot ActUSA PATRIOT Act and Beneficial Ownership Regulations (collectively, to the extent reasonably requested “KYC Requirements”), in writing of the Company each case at least ten Business Days five (5) days prior to the Closing Date andDate.
Appears in 1 contract
Sources: Revolving Credit Agreement (Millicom International Cellular Sa)
Conditions Precedent to the Closing Date. The obligations effectiveness of this Agreement, and the obligation of each Lender to make an Advance or of any Issuing Bank to issue a Letter of Credit, and the occurrence of the Closing Date, is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the Joint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender Party:
(i) Notes payable to the order of the Lenders to make Advances the extent timely requested by such Lenders, pursuant to Section 2.16.
(ii) The Administrative Agent shall have received a copy of this Agreement duly executed and delivered by each party thereto.
(iii) Certified copies of (A) the resolutions of the board of directors or of the members or managers of the Borrower approving the execution, delivery and performance of this Agreement and each Issuing Bank other Loan Document, and (B) all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to issue Letters this Agreement and the other Loan Documents. 76 SDI – Credit Agreement
(iv) A copy of Credit hereunder a certificate of the Secretary of State of the jurisdiction of incorporation or organization of the Borrower, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) 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 Organizational Documents on file in such Secretary’s office, (2) if applicable, the Borrower has paid all franchise taxes to the date of such certificate and (C) the Borrower is duly incorporated or organized and in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation or organization.
(v) A certificate of the Borrower, signed on behalf of the Borrower by a Responsible Officer, dated the date of the Closing Date (the statements made in which certificate shall be subject true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the following conditions having been satisfied Organizational Documents of the Borrower 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 bylaws or waived (operating agreement, as applicable, of the first such Borrower as in effect on the date on which each the resolutions referred to in Section 3.01(a)(iii) were adopted and on the date of the following conditions Closing Date, (C) the due incorporation/organization and good standing or valid existence of the Borrower as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any proceeding for the dissolution or liquidation of the Borrower, (D) (x) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Closing Date and (y) the absence of any event occurring and continuing, or resulting from the Closing Date, that constitutes a Default and (E) the current Debt Ratings.
(vi) A certificate of a Responsible Officer of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(vii) A favorable opinion of B▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP counsel for the Borrower, in substantially the form of Exhibit D hereto and as to such other matters as the Administrative Agent or the Joint Lead Arrangers may reasonably request.
(viii) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been satisfied or waived, the “Closing Date”):appointed as Process Agent under Section 8.12 hereof.
(ab) Since March 22There has been no event or condition since December 31, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development 2022 that has had or would could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. 77 SDI – Credit Agreement
(c) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (as defined the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Loan Document, and there shall have been no adverse change in the Merger Agreementstatus, or financial effect on, the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) on the Company (as defined in the Merger Agreement)hereto.
(bd) The Company Borrower shall have paid on (i) all accrued fees of the Joint Lead Arrangers, the Administrative Agent and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and the Administrative Agent, and local counsel to the Lender Parties), and (ii) all accrued and unpaid interest, fees, expenses, and reimbursement Obligations pursuant to the terms of the Existing Credit Agreement or otherwise due in respect of the Existing Credit Facilities.
(e) All advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full. The commitments under the Existing Credit Agreement shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Administrative Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Administrative Agent), and all guaranties, if any, supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated.
(f) The Administrative Agent and the Lender Parties shall have received, at least three (3) Business Days prior to the Closing Date, an executed Certificate of Beneficial Ownership (in form and substance acceptable to the Administrative Agent and each Lender Party), and shall have received, at least three (3) Business Days prior to the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced other documentation and other information requested at least three business seven (7) days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances and of each Issuing Bank to issue Letters of Credit Extensions hereunder shall be subject to become effective on the following conditions having been satisfied or waived date (such date, the first such date “Closing Date”) on which each of the following conditions have been satisfied or waived, the “Closing Date”):precedent is satisfied:
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Administrative Agent shall have received for the account following, each of which shall be originals or facsimiles or in an electronic format acceptable to the Administrative Agent (followed promptly by originals) unless otherwise specified, each Lender a certificate signed properly executed by a duly authorized officer Responsible Officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the followingBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date prior to the Closing Date, ) and each in form and substance reasonably satisfactory to the AgentAdministrative Agent and each of the Lenders:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.executed counterparts of this Agreement;
(ii) Certified copies Notes executed by the Borrower in favor of each Lender requesting a Note;
(iii) the favorable opinions of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ PLLC, special Tennessee counsel to the Borrower, (B) ▇▇▇▇▇ ▇. ▇▇▇▇, Vice President, Transactions, SEC and Corporate Secretary to the Borrower and (C) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special counsel to the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent;
(iv) a certificate, signed by an Authorized Officer of the resolutions Borrower, certifying that (A) all representations and warranties of the Board of Directors of the Company approving Borrower contained in this Agreement and the Notesother Credit Documents are true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of the Closing Date, both immediately before and after giving effect to the transactions contemplated hereby (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such date), (B) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (C) no change, occurrence or development shall have occurred or become known to the Borrower since December 31, 2012 that could reasonably be expected to have a Material Adverse Effect, and of (D) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect conditions precedent to the Closing Date set forth in this Agreement and the Notes.Section 3.1 have been satisfied or waived as required hereunder;
(iiiv) A a certificate of the Secretary secretary or an Assistant Secretary assistant secretary of the Company Borrower certifying the names (A) that attached thereto is a true and true signatures complete copy of the officers articles or certificate of incorporation and all amendments thereto of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunderBorrower, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, certified as of a recent date by the applicable state governmental authority Secretary of State of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the bylaws of the Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of the Borrower, authorizing the execution, delivery and performance of this Agreement and the other Credit Documents, and (yD) a good standing certificate (as to the extent such concept exists) from the applicable state governmental authority incumbency and genuineness of the Company’s jurisdiction signature of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial each officer of the Borrower certifying that executing this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above;
(vi) the Financial Condition Certificate signed by an Authorized Officer of the Borrower confirming that, as of the Closing Date, after giving effect to the consummation of the transactions contemplated hereby each of the Borrower and its Subsidiaries on is solvent; and
(vii) a consolidated basis certificate as of a recent date of the good standing of the Borrower under the laws of its jurisdiction of organization, from the Secretary of State of such jurisdiction.
(b) All material governmental authorizations and third-party consents and approvals necessary in connection with the consummation of any of the transactions contemplated hereby shall have been obtained and shall remain in effect and shall not impose any restriction or condition materially adverse to the Administrative Agent or the Lenders; all applicable waiting periods shall have expired without any action being taken or threatened by any Governmental Authority; and no law or regulation shall be applicable, or event shall have occurred, that seeks to enjoin, restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the consummation of any of the transactions contemplated hereby.
(c) There shall be no action, suit, proceeding or investigation (whether previously existing, newly instituted or threatened) before, and no order, injunction or decree shall have been entered by, any court, arbitrator or other Governmental Authority, in each case seeking to enjoin, restrain, restrict, set aside or prohibit, to impose material conditions upon, or to obtain substantial damages in respect of, the consummation of any of the transactions contemplated hereby or that has, or could reasonably be expected to have, a Material Adverse Effect.
(d) The Administrative Agent shall have received copies of the financial statements referred to in Section 4.12.
(e) Since December 31, 2012, both immediately before and after giving effect to the Transactions are solventconsummation of the transactions contemplated hereby, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect.
(vif) The Borrower shall have paid (xi) at least three days to the Arrangers and the Administrative Agent, the fees required under the Fee Letters to be paid to it on the Closing Date, in the amounts due and payable on the Closing Date as required by the terms thereof, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Fee Letters, and (iii) all other fees and reasonable expenses of the Arrangers, the Administrative Agent, the L/C Agent, the Fronting Bank and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement, the other Credit Documents and the transactions contemplated hereby.
(g) The Administrative Agent shall have received an Account Designation Letter, together with written instructions from an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the Loans to be made hereunder.
(h) The Administrative Agent shall have received from the Borrower all documentation and other information regarding requested by the Company requested in connection with Administrative Agent that is required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot PATRIOT Act, to the extent reasonably requested in writing .
(i) Each of the Company at least ten Business Days Administrative Agent and each Lender shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby consistent with those customarily found in similar financings. Without limiting the generality of the provisions of Section 9.4, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date andspecifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Unum Group)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit Closing Date hereunder shall be is subject to the following conditions having been satisfied condition precedent that the Buyer and the Administrative Agent (as the Buyer’s assignee) shall have received, on or waived before the Closing Date, the following, each (the first such date on which each unless otherwise indicated) dated as of the following conditions have been satisfied or waived, the “Closing Date”, and each in form and substance reasonably satisfactory to the Buyer and the Administrative Agent (as the Buyer’s assignee):
(a) Since March 22A copy of the resolutions or written consent of the board of directors or managers or other equivalent governing body of the Seller approving this Agreement and the other Transaction Documents to be executed and delivered by it and the transactions contemplated thereby, 2021, there has not been any effect, change, event, circumstance, condition, occurrence certified by the Secretary or development that has had Assistant Secretary (or would reasonably be expected to have, either individually or in equivalent) of the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).Seller;
(b) The Company shall have paid on Good standing certificates, or an equivalent certificate, for the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, Seller issued as of a recent date reasonably acceptable to the extent invoiced at least three business days prior to Buyer and the Closing Date Administrative Agent (except as otherwise reasonably agreed the Buyer’s assignee) by the Company) (which amounts may be offset against the proceeds Secretary of State, or other equivalent authority, of the Facilities).jurisdiction of the Seller’s organization;
(c) On A certificate of the Closing DateSecretary or Assistant Secretary (or equivalent) of the Seller certifying the names and true signatures of the officers authorized on such Person’s behalf to sign this Agreement and the other Transaction Documents to be executed and delivered by it (on which certificate the Servicer, the Buyer and the Administrative Agent (as the Buyer’s assignee) may conclusively rely until such time as the Servicer, the Buyer and the Administrative Agent (as the Buyer’s assignee) shall have received for receive from such Person a revised certificate meeting the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) requirements of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.clause (c));
(d) The Agent shall have received certificate or articles of incorporation, certificate of formation or other organizational document of the Seller (including all amendments and modifications thereto) duly certified by the Secretary of State, or other equivalent authority, of the jurisdiction of the Seller’s organization as of a recent date, together with a copy of the by-laws, limited liability company agreement, or equivalent governing document of the Seller (including all amendments and modifications thereto), each duly certified by the Secretary or an Assistant Secretary (or equivalent) of the Seller;
(e) The forms of financing statements (Form UCC-1) that name the Seller as the debtor/seller and the Buyer as the buyer/assignee of the Receivables sold or contributed by the Seller as may be necessary or, in the Buyer’s reasonable opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Buyer’s ownership interest in all Receivables and Related Rights (including, without limitation, Related Security) in which an ownership or security interest has been assigned to the Buyer hereunder;
(f) Written lien search results listing all effective financing statements that name the Seller as debtor or seller and that are filed in the Seller’s jurisdiction of organization, together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated, as the case may be, on or before prior to the Closing Date copies Initial Funding Date), shall cover any Receivable or any Related Rights which are to be sold or contributed to the Buyer hereunder), and tax and judgment lien search results showing no evidence of such liens filed against the following, each dated Seller;
(g) Favorable opinions of counsel to the Closing DateSeller, in form and substance reasonably satisfactory to the Buyer, the Administrative Agent (as the Buyer’s assignee), and each Group Agent:;
(h) [Reserved]; and
(i) The Notes Evidence of (i) the execution and delivery by the Seller and the Buyer of this Agreement and each of the other Transaction Documents to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
be executed and delivered in connection herewith; and (ii) Certified copies that each of the resolutions conditions precedent to the execution, delivery and effectiveness of such other Transaction Documents has been satisfied to the Board of Directors of the Company approving this Agreement Buyer’s and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and Administrative Agent’s (as the NotesBuyer’s assignee) satisfaction.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Receivables Purchase Agreement (Exact Sciences Corp)
Conditions Precedent to the Closing Date. The obligations obligation of the Fixed Rate Note Purchasers to purchase the Fixed Rate Notes, the Lenders to make Advances Construction Loans and of each the Issuing Bank to issue Letters of Credit hereunder shall be Credit, is subject to the following conditions having been satisfied or waived (the first such date on which prior satisfaction of each of the following conditions have been satisfied or waived, (unless waived in writing by the “Closing Date”Administrative Agent and the Required Financing Parties):
(a) Since March 22The Administrative Agent shall have received this Agreement, 2021the Fixed Rate Notes and each other Financing Document, there has not been any effectduly authorized, changeexecuted and entered into by the Borrower, eventthe Fixed Rate Note Purchasers, circumstancethe Lenders, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in Issuing Bank and each of the Merger Agreement) on the Company (as defined in the Merger Agreement).Agents;
(b) The Company Administrative Agent shall have paid received the Base CREZ Budget and the Construction Budget and Schedule (certified as true, correct and complete by a Responsible Officer of the Borrower), in form and substance satisfactory to the Administrative Agent, the Issuing Bank, the Financing Parties and the Independent Engineer;
(c) Each representation and warranty set forth in the Financing Documents is true and correct on the Closing Date all fees required (or, if any representation or warranty is stated to have been made as of a specific date, as of such specific date);
(d) No Default or Event of Default shall have occurred and be paid pursuant to continuing or in connection with this Agreement, to will result from the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds issuance of the Facilities).Fixed Rate Note;
(ce) On the Closing Date, the The Administrative Agent shall have received for received:
(i) a copy of the account certificate of formation, certificate of limited partnership, certificate of registration or other formation documents, including all amendments thereto, of each Lender of the Borrower, the Pledgor, TDC, the Operating Partnership and the General Partner, each certified as of a recent date by the Secretary of State of Texas or Delaware, as applicable, and a certificate signed by a duly authorized officer as to the good standing of the CompanyBorrower as of a recent date from such Secretary of State;
(ii) a certificate of a Responsible Officer, Secretary or Assistant Secretary, or, if applicable, a Managing Member, of each of the Borrower, the Pledgor, TDC, the Operating Partnership and the General Partner, and solely with respect to clauses (B) and (D) below, each Founding Equity Investor, substantially in the form of Exhibit F hereto, dated the Closing Date, Date and certifying to the occurrence or satisfaction clauses (aA) that attached thereto is a true and (h) of this Section 3.02 substantially concurrently with the occurrence complete copy of the Closing Date.
limited liability company operating agreement, bylaws or partnership agreement of such Person (d) The Agent which shall have received on or before the Closing Date copies of the following, each dated the Closing Date, be in form and substance reasonably satisfactory to the Administrative Agent, the other Agents, the Issuing Bank and the Financing Parties), as in effect on the Closing Date and at all times since, as of, or prior to, the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the appropriate governing entity or body of such Person, authorizing the execution, delivery and performance of the Operative Documents to which such Person is a party and, the issuance of the Fixed Rate Notes, request for Letters of Credit and the Borrowings of the Loans hereunder and the granting of the Liens contemplated to be granted by the Borrower and the Pledgor under the Security Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation, certificate of formation, certificate of limited partnership, certificate of registration or other formation documents of such Person have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer executing any Operative Document or any other document delivered in connection herewith on behalf of such Person and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Person or, to the knowledge of such Secretary or Assistant Secretary, threatening the existence of such Person; and
(iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above;
(f) The Administrative Agent shall have received certificates issued by the jurisdiction of formation of the Borrower, the Pledgor, TDC, the Operating Partnership, the General Partner and, to the extent issued by such jurisdiction for any Founding Equity Investor organized outside of the U.S., each Founding Equity Investor, certifying that each such Person is in good standing and is authorized to transact business in such state;
(g) The Administrative Agent shall have received a true, complete and correct copy of each Effective Material Project Document on the Closing Date and any existing supplements or amendments thereto, all of which shall be satisfactory in form and substance to the Administrative Agent, the Issuing Bank and the Financing Parties, such documents shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect on the Closing Date and shall be certified by a Responsible Officer of the Borrower as being true, complete and correct copies and in full force and effect, such delivery to the Administrative Agent to be accompanied by a certificate of a Responsible Officer of the Borrower, that to the best of the Borrower’s knowledge no party to any such Material Project Document is, or but for the passage of time or giving of notice or both will be, in breach of any obligation thereunder which could reasonably be expected to have a Material Adverse Effect;
(h) The Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions where assets of the Borrower are located, and such searches shall reveal no Liens on any of the assets of the Borrower except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent, the Issuing Bank and the Financing Parties;
(i) To the extent that there is any Mortgaged Property that is Requisite Project Property at the time all other conditions in this Section 4.1 are met:
(i) The Notes Administrative Agent shall have received a Mortgage with respect to each Mortgaged Property, executed and delivered by a duly authorized officer of the Borrower;
(ii) If requested by the Administrative Agent, the Administrative Agent shall have received, and the title insurance company issuing the policy referred to in clause (iii) below (the “Title Insurance Company”) shall have received, maps or plats of an as-built survey of each such Mortgaged Property that is a Substation Site, certified to the Lenders Administrative Agent and the Title Insurance Company in a manner satisfactory to them, dated a date satisfactory to the Administrative Agent and the Title Insurance Company by an independent professional licensed land surveyor satisfactory to the Administrative Agent and the Title Insurance Company;
(iii) The Administrative Agent shall have received in respect of each such Mortgaged Property that is a Substation Site a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance, in each case in form and substance satisfactory to the Administrative Agent and shall have received evidence satisfactory to it that all premiums in respect of each such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid;
(iv) If requested by the Administrative Agent, the Administrative Agent shall have received (A) a policy of flood insurance that (1) covers any Substation Site that is encumbered by any Mortgage and that is shown to be in a flood plain by flood certificates delivered to the Administrative Agent, (2) is written in an amount not less than the portion of the outstanding principal amount of the indebtedness secured by such Mortgage that is reasonably allocable to such Substation Site or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less and (3) has a term ending not sooner than the maturity of the Indebtedness secured by such Mortgage (or such shorter term that is the maximum term then available with respect to the particular type of property under the National Flood Insurance Act of 1968) and (B) confirmation that the Borrower has received the notice required pursuant to Section 208.25(i) of Regulation H of the Board; and
(v) The Administrative Agent shall have received a copy of all recorded documents referred to, or listed as exceptions to title in, the title policy or policies referred to in clause (iii) above and a copy of all other material documents affecting the Substation Sites covered by such title policy or policies.
(j) Each document (including any UCC financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (subject only to Permitted Liens that, pursuant to applicable law, are entitled to a higher priority than the Lien of the Collateral Agent) shall be in proper form for filing, registration or recordation;
(k) The Collateral Agent shall have received the certificates representing the Equity Interests in the Borrower pledged pursuant to the Pledge Agreement, together with an undated transfer power for each such certificate executed in blank by a duly authorized officer of the Pledgor;
(l) The Administrative Agent shall have received evidence that all filing, recordation, subscription and inscription fees and all recording and other similar fees, and all recording, stamp and other taxes and other expenses related to such filings, registrations and recordings necessary for and related to the transactions contemplated by this Agreement and the other Financing Documents to be consummated on or prior to the Closing Date have been paid in full (to the extent requested the obligation to make such payment then exists) by or on behalf of the Borrower or are to be paid in full on the Closing Date;
(m) The Administrative Agent shall have received copies of the Environmental Reports;
(n) The Administrative Agent shall have received the Independent Engineer’s report, dated June 14, 2011 (in form and substance acceptable to the Administrative Agent, the Issuing Bank and the Financing Parties) of its satisfactory review of the Project, such review confirming, without limitation, the reasonableness of operating costs, the adequacy of the proposed construction contingency, the useful life estimate for the Project, technical aspects of the Project, including the adequacy of the proposed construction budget and the construction plan, the equipment and the proposed civil, mechanical and electrical works, confirming the adequacy of the Environmental Reports and any Lender remediation programs necessary for the Project, the Material Project Documents and the ability of the counterparties to execute construction schedule in a timely manner;
(o) The Administrative Agent shall have received the Project Management Agreement in form and substance satisfactory to the Administrative Agent;
(p) The Administrative Agent shall have received the Financial Model, including satisfactory projections through 2020;
(q) The Administrative Agent shall have received the (i) unaudited consolidated financial statements of the Borrower and audited consolidated financial statements of each of the Pledgor, TDC, SU, the Operating Partnership and the General Partner, in each case, for the fiscal year ended December 31, 2010 and (ii) unaudited interim consolidated financial statements of each of the Borrower (certified by a Responsible Officer thereof), Pledgor, TDC, SU, the Operating Partnership and the General Partner for each fiscal quarter ended after the date of the latest applicable financial statements delivered pursuant to Section 2.16 clause (i) of this paragraph as to which such financial statements are available, and the financial statements delivered pursuant to clauses (i) and (ii) shall not, in the reasonable judgment of the Financing Parties, reflect any material adverse change in the consolidated financial condition of the Borrower, the Pledgor, TDC, SU, the Operating Partnership and the General Partner as reflected in the financial statements;
(r) The Borrower shall have disclosed to the Financing Parties all agreements, instruments and corporate or other restrictions to which it is subject on the Closing Date, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent, the Issuing Bank or any Financing Party in connection with the negotiation of this Agreement or any other Financing Document (as modified or supplemented by other information so furnished) shall have contained any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, and taken as a whole, not misleading; provided that, with respect to projected financial information, the Borrower shall have certified only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.Closing Date;
(ivs) A customary opinion of Pillsbury WintThe Administrative Agent shall have received the following opinions, dated the Closing Date, of:
(i) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇LLP, counsel for the Borrower, in form and substance satisfactory to the Company.
Administrative Agent, the Issuing Bank and the Financing Parties, and addressing such matters as the Administrative Agent may request, including the Financing Documents and the CREZ Master Lease (v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that as to the Borrower and its Subsidiaries on SU) and a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date andconforming ACIC Opinion;
Appears in 1 contract
Sources: Credit Agreement (InfraREIT, Inc.)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to issue Letters Issue each Letter of Credit hereunder Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions having been satisfied precedent in each case on or waived (the first such date on which each of the following conditions have been satisfied or waivedprior to December 31, the “Closing Date”):2020:
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement)The Effective Date shall have occurred.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, following in form and substance reasonably satisfactory to the Agent:
(i) The Notes notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 2.16 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iiiii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the Company approving this Agreement type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Noteseffect).
(iiiiv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of the Company each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes each Loan Document to which it is a party and the other documents to be delivered hereunder, and attaching hereunder (x) the charter and by-laws of the Company certified, or certifying no change to the extent applicable, as of a recent date by certificate delivered on the applicable state governmental authority and (y) a good standing certificate (Effective Date pursuant to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporationSection 5.01(a)(v)).
(ivvi) A customary favorable opinion of Pillsbury Wint▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the CompanyLoan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vvii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a certificateBorrowing Base Certificate dated the Closing Date, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect relating to the Transactions are solventFiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders each Lender to make Advances an Advance (including a Swing Line Advance), and the obligation of each Issuing Bank to issue Letters Issue each Letter of Credit hereunder Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and the following conditions having been satisfied precedent in each case on or waived (the first such date on which each of the following conditions have been satisfied or waivedprior to December 31, the “Closing Date”):2020:
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement)The Effective Date shall have occurred.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, following in form and substance reasonably satisfactory to the Agent:
(i) The Notes notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date pursuant to Section 2.16 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iiiii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving transactions of the Company approving this Agreement type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective Date pursuant to Section 5.01(a)(ii) remain in full force and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Noteseffect).
(iiiiv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of the Company each Loan Party certifying the names and true signatures of the officers of the Company such Loan Party authorized to sign this Agreement and the Notes each Loan Document to which it is a party and the other documents to be delivered hereunder, and attaching hereunder (x) the charter and by-laws of the Company certified, or certifying no change to the extent applicable, as of a recent date by certificate delivered on the applicable state governmental authority and (y) a good standing certificate (Effective Date pursuant to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporationSection 5.01(a)(v)).
(ivvi) A customary favorable opinion of Pillsbury Wint▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the CompanyLoan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vvii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries..
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g), 5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a certificateBorrowing Base Certificate dated the Closing Date, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect relating to the Transactions are solventFiscal Month ended on October 30, 2020, and executed by a Responsible Officer of Lead Borrower.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Revolving Credit Agreement (Rayonier Advanced Materials Inc.)
Conditions Precedent to the Closing Date. The obligations obligation of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be the initial Construction Loan on the Closing Date is subject to the following conditions having been satisfied or waived (the first such date on which prior satisfaction of each of the following conditions have been satisfied or waived, to the “Closing Date”satisfaction of the Administrative Agent (unless waived in writing by the Administrative Agent and the Lenders):
(a) Since March 22Delivery to the Administrative Agent of (i) duly authorized and executed counterparts of this Agreement (which may be facsimile or ..pdf copies) and each other Loan Document entered into on the Closing Date and (ii) any Construction Loan Notes requested by Lenders at least five (5) Business Days prior to the Closing Date, 2021each as duly authorized, there executed and delivered by the applicable Loan Parties.
(b) Each representation and warranty of each Loan Party set forth in the Loan Documents to which such Loan Party is a party is true and correct on the Closing Date (or, if any representation or warranty is stated to have been made as of a specific date, as of such specific date).
(c) No Default or Event of Default has occurred and is continuing or will result from the funding of the initial Construction Loan.
(d) Receipt by the Administrative Agent of:
(i) a copy of the articles of incorporation, certificate of formation, certificate of limited partnership, certificate of registration or other formation documents, including all amendments thereto, of the Borrower and Holdings, each certified as of a recent date by the Secretary of State of the state of such Person’s formation or organization;
(ii) a certificate of a Responsible Officer of the Borrower and Holdings dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the limited liability company operating agreement, bylaws or partnership agreement of such Person, as in effect on the Closing Date and the date of the resolutions described in clause (B) below;
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the appropriate governing entity or body of such Person, authorizing the execution, delivery and performance of the Operative Documents to which such Person is a party as of the Closing Date and, if applicable, the borrowings hereunder and the granting of the Liens contemplated to be granted by the applicable Loan Party under the Security Documents (if any), and that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(C) that the articles of incorporation, certificate of formation, certificate of limited partnership, certificate of registration or other formation documents of such Person have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above; and
(D) as to the incumbency and specimen signature of each officer executing any effectOperative Document or any other document delivered in connection herewith on behalf of such Person.
(iii) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (ii) above.
(e) Delivery to the Administrative Agent of a certificate issued by the Secretary of State of the State of Delaware certifying that the Borrower and Holdings are in good standing.
(f) Delivery to the Administrative Agent of a closing certificate, changedated as of the Closing Date, signed by a Responsible Officer of the Borrower, in substantially the form of Exhibit I to this Agreement.
(g) Delivery to the Collateral Agent of the certificates (if any) representing the shares of Capital Stock pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of Holdings.
(h) Delivery to the Administrative Agent of the results of a recent lien search in the jurisdictions of formation of the Borrower and Holdings, and such searches shall reveal no Liens on any of the assets of the Borrower or Holdings except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent.
(i) The Collateral Accounts (other than the Tax Equity Proceeds Account or the Prepayment Account) shall have been established in compliance with this Agreement and the Depositary Agreement.
(j) Delivery to the Administrative Agent and the Collateral Agent of (i) a New York law opinion regarding the enforceability of the Loan Documents (other than the APA Guaranty) and a customary security opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Borrower and Holdings and (ii) a legal opinion regarding corporate matters and the enforceability of the APA Guaranty opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Borrower, Holdings and the Guarantor, in each case in form and substance satisfactory to the Administrative Agent, the Collateral Agent, the DSR LC Issuing Banks and the Lenders;
(k) No Material Adverse Effect or event, circumstance, condition, occurrence condition or development circumstance that has had or would reasonably be expected to have, either individually or in the aggregate, constitute a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement)shall have occurred and be continuing.
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(cl) On the Closing Date, the Agent Borrower shall have received for the account paid (or shall simultaneously pay as of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date) all fees, certifying costs and other expenses and all other amounts then due and payable by the Borrower pursuant to this Agreement (including Section 9.5), the Agent Fee Agreement and each other fee agreement between the Sponsor, the Guarantor or the Borrower and any Lender or Agent (the “Other Fee Agreements”).
(m) Delivery to the occurrence Administrative Agent of evidence that all filing, recordation, subscription and inscription fees and all recording and other similar fees, and all recording, stamp and other taxes and other expenses related to such filings, registrations and recordings necessary for the consummation of the transactions contemplated by this Agreement and the other Loan Documents have been paid in full (to the extent the obligation to make such payment then exists) by or satisfaction clauses (a) and (h) on behalf of this Section 3.02 substantially concurrently with the occurrence Borrower or are to be paid in full out of the proceeds of the initial Construction Loans on the Closing Date.
(dn) The Delivery by the Borrower to the Administrative Agent shall have received on or before of all such documentation and information requested by Administrative Agent and the Closing Date copies Lenders that are necessary (including the names and addresses of the following, each dated the Closing Date, in form Borrower) for Administrative Agent and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury Wint▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that identify the Borrower and its Subsidiaries on a consolidated basis after giving effect to each Project Company in accordance with the Transactions are solvent.
requirements of the Patriot Act (vi) (x) at least three days prior to including the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, similar regulations thereunder).
(o) [Reserved].
(p) Delivery to the extent reasonably requested in writing Administrative Agent of appropriately completed UCC financing statements, which have been duly authorized for filing by an appropriate Person, naming Borrower and Holdings as debtors and Collateral Agent as secured party covering the applicable Collateral.
(q) GSO or its Affiliates shall have committed total funds of at least $300,000,000 to the Guarantor and its Subsidiaries through (i) the acquisition of the Company at preferred stock of the Guarantor and (ii) the closing of a senior secured credit facility made available to APA Finance LLC.
(r) Delivery to the Collateral Agent of the APA Guaranty.
(s) At least ten Business Days five days prior to the Closing Date andDate, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, delivery to the Administrative Agent of a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).. US-DOCS\122160094.24
(c) On the Closing Date, the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Closing Date, certifying to the occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Agent shall have received on or before the Closing Date copies of the following, each dated the Closing Date, in form and substance reasonably satisfactory to the Agent:
(i) The Notes to the Lenders to the extent requested by any Lender pursuant to Section 2.16 prior to the Closing Date.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Company’s jurisdiction of incorporation.
(iv) A customary opinion of Pillsbury WintW▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇LLP, counsel to the Company.
(v) The Agent shall have received a certificate, substantially in the form of Exhibit E hereto, from the chief financial officer of the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(vi) (x) at least three days prior to the Closing Date all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent reasonably requested in writing of the Company at least ten Business Days prior to the Closing Date and
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)