Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, with sufficient copies for the Lenders: (i) Copies of the articles or certificate of incorporation, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Party. (ii) Copies, certified by its Secretary or Assistant Secretary, of each Loan Party's by-laws and Board of Directors' resolutions authorizing the execution of the Credit Documents to which such Loan Party is a party. (iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Documents to which such Loan Party is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Party. (iv) A certificate, signed by the Chief Financial Officer of the Borrower, stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders. (v) A written opinion of counsel for the Loan Parties, addressed to the Lenders in substantially the form of Exhibit A. (vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender. (vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested. (viii) The Subsidiary Guaranty signed by the duly authorized officers of the Subsidiaries that are parties thereto. (ix) The Borrower Pledge Agreement duly executed by an Authorized Officer of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."
Appears in 1 contract
Sources: Credit Agreement (Industrial Distribution Group Inc)
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent Administrative Agent’s receipt of the following, all each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and the Lenders, with sufficient copies for each of the Lenders:
(ia) Copies executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or certificate of incorporation, together with all amendments, comparable organizational documents) and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Party.
(ii) Copiesany amendments thereto, certified in each instance by its Secretary or Assistant Secretary, ;
(e) copies of resolutions of the Borrower’s and each Loan Party's by-laws and Guarantor’s Board of Directors' resolutions Directors (or similar governing body) authorizing the execution execution, delivery and performance of this Agreement and the Credit other Loan Documents to which such Loan Party it is a party.
(iii) An party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificatecertificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, executed all certified in each instance by the its Secretary or Assistant Secretary Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each Loan Party, state in which shall identify by name and title and bear the signatures it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Documents to which such Loan Party is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Party.
(iv) A certificate, Borrower signed by the Chief Financial a Responsible Officer of the Borrower, stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.
(v) A written opinion of counsel for the Loan Parties, addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) The Subsidiary Guaranty signed by the duly authorized officers of the Subsidiaries that are parties thereto.
(ix) The Borrower Pledge Agreement duly executed by an Authorized Officer of the Borrower, together with certifying (i) all stock certificates that the conditions specified in Sections 3.2(a), (b), (c) and other instruments and documents representing the "Pledged Securities" (as defined in the Borrower Pledge Agreemente) accompanied by instruments of transfer and stock powers endorsed in blankhave been satisfied, and (ii) Uniform Commercial Code that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statements naming statement, tax, and judgment lien search results against the Property of the Borrower as "debtor" and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, for that the ratable benefit Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the Lendersprovisions of the last paragraph of Section 9.3, as for purposes of determining compliance with the "secured party" and covering 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 thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the "Collateral" (as defined in Administrative Agent shall have received notice from such Lender prior to the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securitiesproposed Closing Date specifying its objection thereto."
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Cleveland Cliffs Inc)
Initial Credit Extension. The Lenders shall not be required obligations of the L/C Issuer and each Lender to make the their respective initial Credit Extension Extensions hereunder unless the Borrower has furnished are subject solely to the satisfaction or waiver of the following conditions precedent:
(a) subject in all respects to the final paragraph of this Section 3.2, the Administrative Agent shall have received each of the following, all in form and substance satisfactory to the Agent and the Lenderseach of which shall be originals or facsimiles (or delivered by other electronic transmission, with sufficient copies for the Lendersincluding .pdf) unless otherwise specified:
(i) Copies a counterpart of this Agreement signed on behalf of the articles or certificate of incorporation, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Party.Borrower;
(ii) Copiescopies of the certificate of formation, certified by its Secretary certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or Assistant Secretary, comparable organizational documents) of each Loan Party's by-laws Party and Board of Directors' resolutions authorizing any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the execution of the Credit Documents to which such Loan Party is a party.applicable Governmental Authority;
(iii) An incumbency certificatecopies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iv) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(v) a list of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Secretary or Assistant Secretary of Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, which shall identify together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by name and title and bear any Loan Party pursuant to the signatures Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the Authorized Officers pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
(xii) evidence of the existence of insurance required to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 6.3(a), together with certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; provided that with respect to any other officers insurance certificate or endorsement that may not be provided prior to the Closing Date after use of commercially reasonable efforts to do so, then delivery of such Loan Party authorized certificate or endorsement shall not constitute a condition precedent to sign the Credit Documents initial Loans on the Closing Date (but shall be required to which be delivered as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.25 or such Loan Party later date as the Administrative Agent may reasonably agree); and
(xiii) a true and complete copy of the Acquisition Agreement as in effect on the Closing Date;
(b) The condition in Section 3.01(a) of the Acquisition Agreement (but only with respect to representations and warranties that are material to the interests of the Lenders, and only to the extent that the accuracy of such representation or warranty is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Party.
(iv) A certificate, signed by the Chief Financial Officer condition of the Borrower, stating that on ’s obligation to close under the initial Credit Extension Date Acquisition Agreement or the Borrower has (Aor the Borrower’s Affiliates have) no Default the right to terminate the Borrower’s (or Unmatured Default has occurred its Affiliate’s) obligations under the Acquisition Agreement as a result of a breach of such representations and is continuing, warranties in the Acquisition Agreement) shall be satisfied;
(Bc) the representations and warranties of the Borrower set forth in the Credit Documents are Sections 5.1(a) and (a), Section 5.2(i), Section 5.3, Section 5.7(a), Section 5.13, Section 5.20, Section 5.21(b) and Section 5.22 shall be true and correct in all material respects on and as of the Closing Date (except for any such representations and warranties expressly relating to an earlier date, which representations and warranties shall be true and correct in all material respects as of such earlier date);
(d) the NPC Acquisition shall have been or, substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, consummated, in accordance with the terms of the Acquisition Agreement (but without giving effect to any alterations, amendments, modifications, supplements, waivers or consents by the Borrower, or updated disclosure schedules delivered to the Borrower, that are, individually or in the aggregate, materially adverse to the Joint Lead Arrangers without their reasonable consent); provided that any updated disclosure schedules delivered to the Borrower shall not be deemed to be materially adverse to the Joint Lead Arrangers unless such updated disclosure schedules, together with all previous alterations, modifications, amendments, supplements, waivers and consents (whether or not consented to by the Joint Lead Arrangers), would result in a termination right under Section 6.06 of the Acquisition Agreement; provided further that (x) any reduction in the acquisition consideration by more than 10% shall be deemed to be materially adverse and (Cy) any reduction in the acquisition consideration of less than or equal to 10% shall reduce, on a dollar for dollar basis, the aggregate amount of the Facilities under this Agreement and Second Lien Loan Agreement (with allocations across the facilities as agreed by the Joint Lead Arrangers and the Borrower);
(e) the Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all conditions set forth in amounts outstanding under the Existing Loan Agreement, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) Target shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing NPC Credit Agreements, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(g) after giving effect to the NPC Acquisition and the financing contemplated hereby, the Borrower and its Subsidiaries shall have no material Indebtedness for borrowed money other than (a) pursuant to this Article IV Agreement and the Second Lien Loan Agreement and (b) Indebtedness listed on Schedule 6.14;
(h) since June 30, 2010, a Closing Date Material Adverse Effect shall not have occurred;
(i) the Administrative Agent shall have received all documentation and other information about the Loan Parties as shall have been satisfied reasonably requested in writing at least five Business Days prior to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;
(j) the Administrative Agent shall have received (a)(i) audited consolidated balance sheets of the Borrower for the two most recently completed fiscal years of the Borrower, (ii) audited consolidated statements of income and cash flows of the Borrower for the three most recently completed fiscal years of the Borrower, (iii) audited consolidated statements of stockholders’ equity of the Borrower for the six months ended December 31, 2009 and the one month ended June 30, 2009 and (iv) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target for the three most recently completed fiscal years of the Target, in each case, ended at least 90 days before the Closing Date (together, the “Audited Financial Statements”), (b) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower and the Target for each subsequent fiscal quarter ended at least 45 days before the Closing Date and (c) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the four-fiscal quarter period most recently ended pursuant to paragraph (a) or waived (b) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements);
(k) the Administrative Agent shall have received all fees, other payments and expenses previously agreed in writing by the Required Lenders.Borrower to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;
(vl) A written opinion subject in all respects to the final paragraph of counsel this Section 3.2, all other actions not identified in paragraph (a) above that are necessary to establish that the Collateral Agent (for the Loan Parties, addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) The Subsidiary Guaranty signed by the duly authorized officers benefit of the Subsidiaries that are parties thereto.
Secured Parties) will have a perfected Lien (ix) The Borrower Pledge Agreement duly executed by an Authorized Officer of the Borrower, together with (i) all stock certificates subject to Permitted Liens and other instruments and documents representing the "Pledged Securities" Liens (as defined in the Borrower Pledge Second Lien Loan Agreement) accompanied permitted under the Second Lien Loan Agreement, respectively) on the Collateral shall have been taken;
(m) the Administrative Agent shall have received the results of a recent Lien search in each of the jurisdictions of organization of each Loan Party and each jurisdiction where material assets of the Loan Parties are located; provided that with respect to any searches that may not be completed prior to the Closing Date after use of commercially reasonable efforts to do so, then delivery of such search results shall not constitute a condition precedent to the availability of the initial Loans on the Closing Date (but shall be required to be delivered as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.25 or such later date as the Administrative Agent may reasonably agree); and
(n) the Second Lien Loan Documents shall have been executed or, substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be consummated, in accordance with the terms and conditions thereof. For purposes of determining compliance with the conditions specified in this Section 3.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by instruments or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to the contrary in this Section 3.2, to the extent that any Collateral required to be provided or perfected hereunder is not provided or perfected on the Closing Date after the Borrower’s use of transfer and commercially reasonable efforts to do so, then the satisfaction of such requirements (other than the granting of any Lien on Collateral which may be perfected solely by the filing of a UCC financing statement or the pledge of the capital stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming of the Borrower as "debtor" and the Agent, for Guarantors) shall not be a condition precedent to the ratable benefit availability of the Lenders, initial Loans on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.25 or such later date as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge AgreementAdministrative Agent may reasonably agree), evidencing a first priority pledge of and security interest in such "Pledged Securities."
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required effectiveness of this Agreement and the Lenders’ obligation to make the initial Credit Extension hereunder unless shall be subject to the satisfaction of the following conditions precedent: (a) the representations and warranties contained in Article V are true and correct as of such date, (b) the Administrative Agent, the Arrangers and the Lenders shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent and the Arrangers required to be reimbursed or paid by the Borrower hereunder, (c) each Departing Lender shall have received payment in full of all of the “Obligations” under the Existing Credit Agreement that are owing to it (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, “Financial Contract Obligations”, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as defined in the Existing Credit Agreement), and (d) the Borrower has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, Agents with sufficient copies for the Lenders:
(i) Copies A certificate of the Secretary or the Assistant Secretary of the Borrower and each Guarantor certifying as to (1) (A) the articles or certificate of incorporationincorporation (or equivalent thereof), together with all amendmentsamendments thereto, and a certificate of good standingsuch Loan Party, each as certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Party.
(ii) Copiesorganization, certified by its Secretary or Assistant Secretary, of each Loan Party's and by-laws and (or comparable governance documents) of such Loan Party; (2) the resolutions of the Board of Directors' ’ (or other similar governing body’s) and the resolutions or actions of any other body of such Loan Party authorizing the execution of the Credit Loan Documents to which such Loan Party it is a party.
party and (iii3) An incumbency certificatethe incumbency, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify identifying by name and title and bear bearing the signatures signatures, of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party it is a partyparty and, in the case of the Borrower, to request Loans hereunder, upon which certificate the Agent Agents and the Lenders shall be entitled to rely until informed of any change in writing by such the applicable Loan Party.
(ivii) A certificatecertificate of good standing for each Loan Party, certified by the appropriate governmental officer in such Loan Party’s jurisdiction of organization.
(iii) An opening compliance certificate in substantially the form of Exhibit B, signed by an Authorized Officer, showing the Chief Financial Officer of calculations necessary to determine compliance with this Agreement on the Borrower, Closing Date and stating that on the initial Credit Extension Closing Date (A) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.
(viv) A written opinion of counsel for to the Loan PartiesBorrower and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(viv) Any Notes requested by a Lender pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender.
(viivi) Written money transfer instructionsIf the initial Credit Extension shall be the issuance of a Facility LC, in substantially a properly completed Facility LC Application.
(a) satisfactory audited consolidated financial statements of the form Borrower for its 2018 and 2019 fiscal years, (b) satisfactory unaudited interim consolidated financial statements of Exhibit D, addressed the Borrower for each quarterly period ended subsequent to the Agent date of the latest financial statements delivered pursuant to clause (a) of this paragraph as to which such financial statements are available to the Lenders and signed by an Authorized Officer(c) satisfactory financial statement projections through and including the Borrower’s 2024 fiscal year, together with such other related money transfer authorizations information as the Administrative Agent may have and the Lenders shall reasonably requestedrequest (including, without limitation, a detailed description of the assumptions used in preparing such projections).
(viii) The Subsidiary Guaranty signed by the duly authorized officers A Transfer Authorizer Designation Form effective as of the Subsidiaries that are parties theretoClosing Date.
(ix) The At least five (5) days prior to the Closing Date, all documentation and other information regarding the Borrower Pledge Agreement duly executed requested by an Authorized Officer the Administrative Agent or any Lender in order for the Administrative Agent and the Lenders to comply with the requirements of any Anti-Money Laundering Laws, including the Act and any applicable “know your customer” rules and regulations.
(x) At least five (5) days prior to the Closing Date, to the Administrative Agent and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to the Borrower.
(xi) Satisfactory evidence that Borrower’s Private Shelf Agreement and any related facility documentation shall have become effective or shall become effective substantially concurrently with this Agreement, together which Private Shelf Agreement shall reflect conforming changes consistent with the terms of this Agreement and otherwise be on terms and conditions acceptable to the Administrative Agent.
(ixii) all stock certificates and Such other instruments and documents representing as any Lender or its counsel may have reasonably requested including, without limitation, each other document identified on the "Pledged Securities" (List of Closing Documents attached hereto as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."Exhibit E.
Appears in 1 contract
Sources: Credit Agreement (Blueknight Energy Partners, L.P.)
Initial Credit Extension. The Lenders shall not be required obligations of the L/C Issuer and each Lender to make the their respective initial Credit Extension Extensions hereunder unless the Borrower has furnished are subject solely to the satisfaction or waiver of the following conditions precedent:
(a) subject in all respects to the final paragraph of this Section 3.2, the Administrative Agent shall have received each of the following, all in form and substance satisfactory to the Agent and the Lenderseach of which shall be originals or facsimiles (or delivered by other electronic transmission, with sufficient copies for the Lendersincluding .pdf) unless otherwise specified:
(i) Copies a counterpart of this Agreement signed on behalf of the articles or certificate of incorporation, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Party.Borrower;
(ii) Copiescopies of the certificate of formation, certified by its Secretary certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or Assistant Secretary, comparable organizational documents) of each Loan Party's by-laws Party and Board of Directors' resolutions authorizing any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the execution of the Credit Documents to which such Loan Party is a party.applicable Governmental Authority;
(iii) An incumbency certificatecopies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iv) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(v) a list of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Secretary or Assistant Secretary of Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Documents to which such Loan Party is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Party.together with:
(iv) A certificate, signed by the Chief Financial Officer of the Borrower, stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuingthe certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the representations and warranties set forth Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the Credit Documents are true and correct in all material respects on such date, and pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all conditions set forth jurisdictions that the Administrative Agent may deem reasonably necessary in this Article IV have been satisfied or waived in writing by order to perfect the Required Lenders.
(v) A written opinion Liens created under the Security Agreement, covering the Collateral of counsel for the Loan Parties, addressed to the Lenders in substantially the form of Exhibit A.;
(vixi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Written money transfer instructionsIntellectual Property Security Agreements, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) The Subsidiary Guaranty signed by the duly authorized officers of the Subsidiaries that are parties thereto.
(ix) The Borrower Pledge Agreement duly executed by an Authorized Officer of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."each Loan Party party thereto;
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (a) the representations and warranties contained in Article V are true and correct as of such date and (b) the Borrower has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, Agents with sufficient copies for the Lenders:
(i) Copies of the articles or certificate certificates of incorporationincorporation (or similar constitutive documents) of the Borrower and each Guarantor (each a "Loan Party"), together with all amendmentsamendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyorganization.
(ii) Copies, certified by its the Secretary or Assistant SecretarySecretary of each Loan Party, of each such Loan Party's by-laws (or similar constitutive documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Credit Loan Documents to which such Loan Party it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party it is a partyparty and, in the case of the Borrower, to request Credit Extensions hereunder, upon which certificate the Agent Agents, the LC Issuers and the Lenders shall be entitled to rely until informed of any change in writing by such the applicable Loan Party.
(iv) A certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by the Chief Financial Officer chief financial officer, chief accounting officer or treasurer of the Borrower, showing the calculations necessary to determine compliance with this Agreement as of the Borrower's fiscal quarter ended September 26, 2004 and stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.
(vA) A written opinion of the Borrower's and each Guarantor's counsel for and (B) a written opinion of the Loan PartiesAdministrative Agent's counsel with respect to the enforceability of this Agreement, the Notes and the Guaranty, in each case in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.A-1 and Exhibit A-2 respectively.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(viiiix) The Subsidiary Guaranty signed by Evidence satisfactory to the duly authorized officers of Agents that the Subsidiaries Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that are parties theretoexpressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(ixx) The Borrower Pledge Agreement duly executed by an Authorized Officer Such other documents as any Lender or its counsel may have reasonably requested, including, without limitation, each document identified on the List of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (Closing Documents attached hereto as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."Exhibit F.
Appears in 1 contract
Sources: Revolving Credit Agreement (Applebees International Inc)
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (a) the Borrower representations and warranties contained in Article V are true and correct as of such date and (b) the Company has furnished to the Administrative Agent the following, all in form and substance satisfactory to the Agent and the Lenders, with sufficient copies for the Lenders:
(i) Copies of the articles or certificate certificates of incorporationincorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "Loan Party"), together with all amendmentsamendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyincorporation.
(ii) Copies, certified by its the Secretary or Assistant Secretary, Secretary of each Loan Party's Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Credit Loan Documents to which such Loan Party it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party it is a partyparty and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by such the applicable Loan Party.
(iv) A certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by the Chief Financial Officer chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.
(v) A written opinion of counsel for each Borrower's and each Guarantor's counsel, in form and substance satisfactory to the Loan Parties, Administrative Agent and addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(viiiix) The Subsidiary Guaranty signed by Evidence satisfactory to the duly authorized officers of Administrative Agent that the Subsidiaries Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that are parties theretoexpressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(ixx) The Borrower Pledge Agreement duly executed by an Authorized Officer Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (Closing Documents attached hereto as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."Exhibit F.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (a) the Borrower representations and warranties contained in Article V are true and correct in all material respects as of such date and (b) the Company has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, Agents with sufficient copies for the Lenders:
(i) Copies of the articles or certificate certificates of incorporationincorporation (or similar Constitutive Documents) of the Company, each other Borrower and each Guarantor (each a “Loan Party”), together with all amendmentsamendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyincorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by its the Secretary or Assistant Secretary, Secretary of each Loan Party's Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' ’ resolutions and of resolutions or actions of any other body authorizing the execution of the Credit Loan Documents to which such Loan Party it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party it is a partyparty and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Agent Agents and the Lenders shall be entitled to rely until informed of any change in writing by such the applicable Loan Party.
(iv) A certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by the Chief Financial Officer chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (Aa) no Default or Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties set forth in the Credit Documents are Article V shall be true and correct in all material respects on as of such date, date and (Cc) all conditions set forth no material adverse change in this Article IV have been satisfied the business, financial condition or waived in writing by operations of the Required LendersCompany or any of its Subsidiaries has occurred since August 31, 2006.
(v) A written opinion certificate in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or temporary restraining order which would prohibit the making of counsel for the initial Credit Extensions or any litigation seeking such an injunction or restraining order.
(vi) A certificate of value, solvency and other appropriate factual information in form and substance reasonably satisfactory to the Administrative Agent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan PartiesDocuments, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(viviii) Any Notes requested by a Lender pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender.
(viiix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(viiixi) The Subsidiary Guaranty signed by Evidence satisfactory to the duly authorized officers of Agents that the Subsidiaries Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that are parties theretoexpressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been, or shall simultaneously with the initial Advance hereunder be, paid in full.
(ixxii) The Borrower Pledge Agreement duly executed by an Authorized Officer Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (Closing Documents attached hereto as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."Exhibit F.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (a) the representations and warranties contained in Article V are true and correct as of such date and (b) the Borrower has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, Agents with sufficient copies for the Lenders:
(i) Copies of the articles or certificate certificates of incorporationincorporation (or similar constitutive documents) of the Borrower and each Guarantor (each a "Loan Party"), together with all amendmentsamendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyorganization.
(ii) Copies, certified by its the Secretary or Assistant SecretarySecretary of each Loan Party, of each such Loan Party's by-laws (or similar constitutive documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Credit Loan Documents to which such Loan Party it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party it is a partyparty and, in the case of the Borrower, to request Credit Extensions hereunder, upon which certificate the Agent Agents, the LC Issuers and the Lenders shall be entitled to rely until informed of any change in writing by such the applicable Loan Party.
(iv) A certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by the Chief Financial an Authorized Officer of the Borrower, showing the calculations necessary to determine compliance with this Agreement as of the Borrower's fiscal quarter ended September 24, 2006 and stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.
(vA) A written opinion of the Borrower's and each Guarantor's counsel for and (B) a written opinion of the Loan PartiesAdministrative Agent's counsel with respect to the enforceability of this Agreement, the Notes and the Guaranty, in each case in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.A-1 and Exhibit A-2 respectively.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(viiiix) The Subsidiary Guaranty signed by Evidence satisfactory to the duly authorized officers of Agents that the Subsidiaries Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that are parties theretoexpressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(ixx) The Borrower Pledge Agreement duly executed by an Authorized Officer Such other documents as any Lender or its counsel may have reasonably requested, including, without limitation, each document identified on the List of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (Closing Documents attached hereto as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."Exhibit F.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Applebees International Inc)
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless on the Borrower has furnished Closing Date (and the obligations of the Lenders in respect thereof) is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent and Blackstone Representative shall have received a counterpart duly executed and delivered by the Borrower, each other Loan Party, the Agents and each Lender (in each case, to the Agent the following, all in form and substance extent it is a party to such agreement) (or written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a counterpart) that such party has signed a counterpart) of (i) this Agreement and (ii) each Collateral Document to which it is a party;
(b) The Administrative Agent and Blackstone Representative shall have received, on behalf of itself, the Collateral Agent and the Lenders, with sufficient copies the favorable written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties in form and substance reasonably satisfactory to the Blackstone Representative, dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders:;
(c) The Administrative Agent and Blackstone Representative shall have received, with respect to the Borrower and each other Loan Party, (i) Copies copies of the articles or certificate Organizational Documents of incorporation, together with all amendments, such Loan Party (including each amendment thereto) certified as of a date reasonably near the Closing Date as being a true and a certificate of good standing, each certified complete copy thereof by the appropriate governmental officer in its jurisdiction Secretary of organization for each Loan Party.
(ii) Copies, certified by its Secretary State or Assistant Secretary, of each Loan Party's by-laws and Board of Directors' resolutions authorizing the execution other applicable Governmental Authority of the Credit Documents to jurisdiction in which each such Loan Party is organized; (ii) a party.
(iii) An incumbency certificate, executed by certificate of the Secretary secretary or Assistant Secretary assistant secretary of each Loan Party, which shall identify by name Party dated the Closing Date and title certifying (A) that attached thereto is a true and bear the signatures complete copy of the Authorized Officers and any other officers Organizational Documents of such Loan Party authorized to sign the Credit Documents to which such Loan Party is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change as in writing by such Loan Party.
(iv) A certificate, signed by the Chief Financial Officer of the Borrower, stating that effect on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuingClosing Date, (B) the representations and warranties set forth in the Credit Documents are that attached thereto is a true and correct complete copy of resolutions duly adopted by the board of directors or similar governing body of such Loan Party (and, if applicable, any parent company of such Loan Party) approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the US-DOCS\155537880.27 Transactions, and that such resolutions have not been modified, rescinded or amended and are in all material respects on such datefull force and effect, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.
(v) A written opinion of counsel for the Loan Parties, addressed as to the Lenders incumbency and specimen signature of each Person authorized to execute any Loan Document or any other document delivered in substantially connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the form incumbency and specimen signature of Exhibit A.
(vi) Any Notes requested by a Lender the secretary or assistant secretary executing the certificate pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) The Subsidiary Guaranty signed by the duly authorized officers of the Subsidiaries that are parties thereto.
(ix) The Borrower Pledge Agreement duly executed by an Authorized Officer of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and clause (ii) above and (iv) a copy of the certificate of good standing of such Loan Party from the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized (dated as of a date reasonably near the Closing Date);
(d) The Administrative Agent and the Collateral Agent shall have received, on or before the Closing Date, all documents and instruments, including Uniform Commercial Code financing statements naming required by Law or reasonably requested by the Blackstone Representative (to the extent required by the Security Agreement) to be filed, registered, published or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded or other arrangements reasonably satisfactory to the Blackstone Representative for such filing, registration, publication or recordation shall have been made;
(e) The Administrative Agent and Blackstone Representative shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Loan Parties, together with all attachments contemplated thereby;
(f) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date (x) a Beneficial Ownership Certificate with respect to the Borrower and (y) all other documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, that has been reasonably requested by any Lender at least ten (10) days in advance of the Closing Date.
(g) The Administrative Agent and Blackstone Representative shall have received a Solvency Certificate signed by a Financial Officer;
(h) The Administrative Agent and Blackstone Representative shall have received a certificate of a Responsible Officer of the Borrower as "debtor" to the matters set forth in clause (b) and (c) of Section 4.2;
(i) (x) The Arrangers and the AgentAdministrative Agent shall have received (or shall receive substantially concurrently with the initial Credit Extension on the Closing Date), for to the ratable benefit extent invoiced at least two (2) Business Days prior to the Closing Date, all fees and other amounts due and payable on or prior to the Closing Date pursuant to the Loan Documents, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Loan Parties hereunder or under any other Loan Document and (y) the Administrative Agent shall have received a fully executed copy of the LendersAgent Fee Letter;
(j) The Administrative Agent and Blackstone Representative shall have received copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Blackstone Representative at least three (3) Business Days prior to the Closing Date with respect to the Loan Parties;
(k) The Administrative Agent and Blackstone Representative shall have received a certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to the Blackstone Representative that all insurance required to be maintained pursuant to Section 5.5 is in full US-DOCS\155537880.27 force and effect, together with endorsements naming the Administrative Agent or the Collateral Agent as the "secured party" and covering the "Collateral" additional insured or lender’s loss payee thereunder (as defined in applicable);
(l) The Administrative Agent and Blackstone Representative shall have received the Agreement Among Lenders dated the Closing Date and duly executed and delivered by each Lender and the Agents;
(m) Prior to or substantially concurrently with the initial funding of the Loans hereunder on the Closing Date, all existing third party debt for borrowed money of the Borrower Pledge Agreement)and its Subsidiaries under the Existing Credit Agreement will be repaid, evidencing a first priority pledge of redeemed, defeased, discharged, refinanced or terminated, all commitments to extend credit thereunder shall be terminated, and all related guaranties and security interest in such "Pledged Securitiesinterests will be terminated and released to the reasonable satisfaction of the Blackstone Representative; and
(n) The Administrative Agent shall have received the executed Funding Direction Letter with the funds flow attached."
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (a) the Borrower representations and warranties contained in Article V are true and correct in all material respects as of such date and (b) the Company has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, Agents with sufficient copies for the Lenders:
(i) Copies of the articles or certificate certificates of incorporationincorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a “Loan Party”), together with all amendmentsamendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyincorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by its the Secretary or Assistant Secretary, Secretary of each Loan Party's Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' ’ resolutions and of resolutions or actions of any other body authorizing the execution of the Credit Loan Documents to which such Loan Party it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party it is a partyparty and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Agent Agents and the Lenders shall be entitled to rely until informed of any change in writing by such the applicable Loan Party.
(iv) A certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by the Chief Financial Officer chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (Aa) no Default or Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties set forth in the Credit Documents are Article V shall be true and correct in all material respects on as of such date, date and (Cc) all conditions set forth no material adverse change in this Article IV have been satisfied the business, financial condition or waived in writing by operations of the Required LendersCompany or any of its Subsidiaries has occurred since November 30, 2003.
(v) A written opinion certificate in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or temporary restraining order which would prohibit the making of counsel for the initial Credit Extensions or any litigation seeking such an injunction or restraining order.
(vi) A certificate of value, solvency and other appropriate factual information in form and substance reasonably satisfactory to the Administrative Agent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan PartiesDocuments, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of S▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, special counsel to the Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(viviii) Any Notes requested by a Lender pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender.
(viiix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(viiixi) The Subsidiary Guaranty signed by Evidence satisfactory to the duly authorized officers of Agents that the Subsidiaries Existing Credit Agreements shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that are parties theretoexpressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been, or shall simultaneously with the initial Advance hereunder be, paid in full.
(ixxii) The Borrower Pledge Agreement duly executed by an Authorized Officer Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (Closing Documents attached hereto as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."Exhibit F.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Acuity Brands Inc)
Initial Credit Extension. The Lenders shall not be required obligations of the L/C Issuer and each Lender to make the their respective initial Credit Extension Extensions hereunder unless the Borrower has furnished are subject solely to the satisfaction or waiver of the following conditions precedent:
(a) subject in all respects to the final clause of this Section 3.2, the Administrative Agent shall have received each of the following, all in form and substance satisfactory to the Agent and the Lenderseach of which shall be originals or facsimiles (or delivered by other electronic transmission, with sufficient copies for the Lendersincluding .pdf) unless otherwise specified:
(i) Copies a counterpart of this Agreement signed on behalf of the articles or certificate of incorporation, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Party.Borrower;
(ii) Copiescopies of the certificate of formation, certified by its Secretary certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or Assistant Secretary, comparable organizational documents) of each Loan Party's by-laws Party and Board of Directors' resolutions authorizing any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the execution of the Credit Documents to which such Loan Party is a party.applicable Governmental Authority;
(iii) An incumbency certificatecopies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iv) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(v) a list of the Borrower’s Authorized Representatives;
(vi) (A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Secretary or Assistant Secretary of Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, which shall identify together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by name and title and bear any Loan Party pursuant to the signatures Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the Authorized Officers and pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any other officers of such Loan Party authorized pursuant to sign the Credit Documents Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to which such perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) the Intellectual Property Security Agreements, duly executed by each Loan Party is party thereto;
(xi) evidence of the existence of insurance required to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 6.3(a), together with certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or lenders’ loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xii) the results of a party, upon which certificate the Agent and the Lenders shall be entitled recent Lien search with respect to rely until informed of any change in writing by such each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.15 or discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent.
(iv) A certificate, signed by the Chief Financial Officer of the Borrower, stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing, (Bb) the representations and warranties of the Borrower set forth in the Credit Documents are this Agreement shall be true and correct in all material respects on and as of the Closing Date (except for any such representations and warranties expressly relating to an earlier date, which representations and warranties shall be true and correct in all material respects as of such earlier date);
(c) no Default or Event Default shall have occurred and be continuing or shall result therefrom;
(d) the Share Repurchase shall have been consummated;
(e) the Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing Credit Agreement, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) the Administrative Agent shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least two (2) Business Days prior to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;
(g) the Administrative Agent shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed fiscal years of the Borrower, in each case, ended at least 90 days before the Closing Date (together, the “Audited Financial Statements”) and (Cb) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each subsequent fiscal quarter ended at least 45 days before the Closing Date;
(h) the Administrative Agent shall have received all conditions set forth in this Article IV have been satisfied or waived fees, other payments and expenses previously agreed in writing by the Required Lenders.
(v) A written opinion of counsel for the Loan Parties, addressed Borrower to be due and payable on or prior to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable Closing Date, including, to the order of each such requesting Lender.
extent invoiced at least two (vii2) Written money transfer instructions, in substantially the form of Exhibit D, addressed Business Days prior to the Agent and signed by an Authorized Officer, together with Closing Date (or such other related money transfer authorizations later date as the Agent Borrower may have reasonably requested.agree), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;
(viii) The Subsidiary Guaranty signed by the duly authorized officers of the Subsidiaries that are parties thereto.
(ix) The Borrower Pledge Agreement duly executed by an Authorized Officer of the Borrower, together with (i) subject in all stock certificates and respects to the final paragraph of this Section 3.2, all other instruments and documents representing actions not identified in clause (a) above that are necessary to establish that the "Pledged Securities" Collateral Agent (as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the LendersSecured Parties) will have a perfected Lien (subject to Permitted Liens) on the Collateral shall have been taken; and
(j) the Administrative Agent shall have received the results of a recent Lien search in each of the jurisdictions of organization of each Loan Party and each jurisdiction where material assets of the Loan Parties are located. For purposes of determining compliance with the conditions specified in this Section 3.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to the contrary in this Section 3.2, to the extent that any Collateral constituting real property is not provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, then the satisfaction of such requirements shall not be a condition precedent to the availability of the initial Loans on the Closing Date (but shall be required to be satisfied ninety (90) days after the Closing Date or such later date as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge AgreementAdministrative Agent may reasonably agree), evidencing a first priority pledge of and security interest in such "Pledged Securities."
Appears in 1 contract
Sources: Loan Agreement (Vantiv, Inc.)
Initial Credit Extension. 4.1.1 The Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished the following to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, with sufficient copies for the Lenders:
(i) Copies this Agreement;
(ii) copies of the certificate of formation or other applicable document of the Borrower, together with all amendments thereto, and certificates of good standing, each certified by the appropriate governmental officer in each such company's jurisdiction of formation;
(iii) a copy of the articles or certificate of incorporation, incorporation of the Guarantor together with all amendmentsamendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Party.incorporation;
(iiiv) Copies, a copy certified by its Secretary or Assistant Secretary, of each Loan Party's by-laws and Board of Directors' resolutions authorizing the execution of the Credit Documents to which such Loan Party is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Borrower of (i) its limited liability company agreement, and (ii) resolutions from its managers authorizing the execution of the Loan PartyDocuments to which it is a party;
(v) copies certified by the Secretary or Assistant Secretary of the Guarantor of (i) its by-laws and (ii) resolutions of its Board of Directors authorizing the execution of the Loan Documents to which it is a party;
(vi) incumbency certificates, executed by the respective Secretary or Assistant Secretary of the Borrower and the Guarantor which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party the Borrower and the Guarantor, respectively is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Party.the Borrower;
(ivvii) A a certificate, signed by the Chief Financial Officer chief financial officer of the Borrower, stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.;
(vviii) A written opinion opinions of counsel for to the Loan Parties, Borrower and the Guarantor addressed to the Agent and Lenders and their counsel in substantially the form of Exhibit A.D;
(viix) Any the Notes requested by a Lender issued pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender., and, if the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application;
(viix) Written the Deed of Trust, executed by Borrower, in a form satisfactory to the Agent, the Lenders and their counsel with respect to the Properties therein described, which are part of the Collateral, and such other agreements, documents and instruments as may be necessary and appropriate, in form and substance satisfactory to the Agent and the Lenders, executed and delivered by Borrower, as mortgagor or assignor, in favor of the Agent, ratably for the benefit of the Lenders, in order to create and perfect the Lender Liens in and to all Collateral described therein;
(xi) the Pledge Agreement, executed by the Guarantor, in a form satisfactory to the Agent, the Lenders and their counsel with respect to the Properties therein described, which are a part of the Collateral;
(xii) the Guaranty, executed by Guarantor, in a form satisfactory to the Agent, the Lenders, and their counsel;
(xiii) written money transfer instructions, in substantially the form of Exhibit DE, addressed to the Agent and signed by an Authorized OfficerOfficer of the Borrower, on behalf of the Borrower, together with such other related money transfer authorizations as the Agent may have reasonably requested;
(xiv) title opinions from counsel acceptable to the Agent, or title review satisfactory to the Agent, with respect to the Oil and Gas Properties included in the Collateral and in a form acceptable to the Agent and the Lenders, covering at least ninety percent (90%) of the aggregate value of such Oil and Gas Properties;
(xv) the Initial Reserve Report upon which the initial Borrowing Base has been determined acceptable to all the Lenders;
(xvi) copies of any environmental reports regarding any environmental assessment of the Oil and Gas Properties included in the Collateral, which shall be acceptable to all Lenders;
(xvii) the insurance certificate(s) described in Section 5.20;
(xviii) detailed monthly projections (including balance sheets, income and cash flow statements) for the Guarantor, the Borrower and their Subsidiaries as of and for the period ending December 31, 2003, which projections shall be acceptable to the Lenders in their sole discretion;
(xix) ISDA documents entered into between Borrower and any of the Lenders evidencing Rate Management Transactions with respect to the Oil and Gas Properties of the Borrower and Guarantor with confirmations of the transactions thereunder providing satisfactory hedging of natural gas sales in amounts and at prices satisfactory to the Lenders from the date hereof through October, 2003;
(xx) the Financial Statements described in Section 5.4;
(xxi) an Assignment of Notes, Liens and Security Interests in form an substance satisfactory to the Agent in its sole discretion, executed by each of the lenders currently party to the Prior Credit Agreement and
(xxii) Such other documents as any Lender or its counsel may have reasonably requested.
4.1.2 The Lenders shall not be required to make the initial Credit Extension hereunder unless the following conditions precedent are satisfied, to the satisfaction of the Agent and the Lenders:
(viiii) The Subsidiary Guaranty signed the Agent and the Lenders shall have satisfactorily completed their normal and customary due diligence in connection with loans of the type contemplated by this Agreement;
(ii) any Existing Rate Management Transactions with the Lenders under the Prior Credit Agreement shall be assigned to Bank One by the duly authorized officers counter-parties thereto;
(iii) this Agreement and any Rate Management Transaction (including, without limitation, the Existing Rate Management Transaction) shall each be (or upon the execution, delivery and filing of the Subsidiaries that are parties thereto.Loan Documents creating the Lenders' Liens each shall be) secured by a pari passu first lien on substantially all of the Oil and Gas Properties of the Borrower and Guarantor;
(ixiv) The Borrower Pledge Agreement duly executed by an Authorized Officer the Agent and the Lenders shall have reviewed and become satisfied with any changes in the composition of the Borrower's Board of Directors and executive management occurring prior to the date of the initial Credit Extension;
(v) there shall not have been, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (as defined in the Borrower Pledge Agreement) accompanied by instruments sole judgment of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for any material adverse change in the ratable benefit financial condition, business, or operations of the LendersBorrower or any of the Borrower's Subsidiaries, as or a material adverse change with respect to their Oil and Gas Properties; and
(vi) payment of all facility and administrative fees required to be paid pursuant to any Loan Document and the "secured party" Fee Letter and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge legal fees and disbursements of and security interest in such "Pledged SecuritiesAgent's counsel."
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless and until the following conditions precedent shall have been satisfied:
(a) the Borrower has paid all fees hereunder to the extent then due and payable and all costs and expenses of the Agent (including reasonable counsel fees and disbursements) incurred through the date hereof.
(b) The Borrower has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporationincorporation of each Loan Party, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyincorporation.
(ii) Copies, certified by its the Secretary or Assistant Secretary, Secretary of each Loan Party's , of its by-laws and of its Board of Directors' resolutions and of Governmental Approvals or resolutions or actions of any other body, if any, authorizing the execution of the Credit Loan Documents to which such Loan Party is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Party.
(iv) A certificate, signed by the Chief Financial Officer chief financial officer or the Treasurer of the Borrower, stating that on the date of the initial Credit Extension Date (A) the representations and warranties contained in Article V of this Agreement are true and correct and (B) no Default or Unmatured Default has occurred and is continuing, (B) the representations and warranties set forth in the Credit Documents are true and correct in all material respects on such date, and (C) all conditions set forth in this Article IV have been satisfied or waived in writing by the Required Lenders.
(v) A certificate, signed by the chief financial officer or the Treasurer of the Guarantor, stating that on the date of the initial Credit Extension (A) the representations and warranties contained in Section 6 of the Guaranty are true and correct and (B) no Default or Unmatured Default has occurred and is continuing.
(vi) A written opinion of the counsel for to the Loan Parties, addressed to the Lenders in substantially the form of Exhibit A.
(vivii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(viiviii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viiiix) The Subsidiary Guaranty signed by Information satisfactory to the duly authorized officers of Agent and the Subsidiaries that are parties theretoRequired Lenders regarding the Loan Parties' Year 2000 Program.
(ixx) The Borrower Pledge Agreement Guaranty, duly executed by an Authorized Officer of the Borrower, together with Guarantor.
(ixi) all stock certificates and other instruments and documents representing Evidence satisfactory to the "Pledged Securities" (as defined in Agent that the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blankExisting Facility, and all amounts accrued and outstanding thereunder (iiwhether for principal, interest, fees or other amounts) Uniform Commercial Code financing statements naming shall have been paid in full.
(xii) Such other documents as any Lender or its counsel may have reasonably requested.
(xiii) If the Borrower as "debtor" and initial Credit Extension will be the Agentissuance of a Facility LC, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securitiesproperly completed Facility LC Application."
Appears in 1 contract
Initial Credit Extension. The This amendment and restatement shall not be effective and the Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, with sufficient copies for the Lenders:
(i) Copies of the articles or certificate of incorporationincorporation of the Borrower, together with all amendments, and a certificate of good standing, authorization/existence each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyincorporation.
(ii) Copies, Copies certified by its the Secretary or Assistant SecretarySecretary of the Borrower, of each Loan Party's its by-laws and of its Board of Directors' ’ resolutions and of resolutions or actions of any other body authorizing the execution of the Credit Loan Documents to which such Loan Party the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Partythe Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party the Borrower authorized to sign the Credit Loan Documents to which such Loan Party the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Loan Partythe Borrower.
(iv) Copies of the articles or certificate of incorporation of the Guarantor, together with all amendments, and a certificate of authorization/existence, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(v) Copies, certified by the Secretary or Assistant Secretary of the Guarantor, of its by-laws authorizing the execution of the Loan Documents to which the Guarantor is a party and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of Loan Documents to which the Guarantor is a party.
(vi) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Guarantor, which shall identify by name and title and bear the signatures of the officers of the Guarantor authorized to sign the Loan Documents to which the Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Guarantor.
(vii) A certificate, signed by the Chief Financial Officer chief financial officer of the Borrower, stating that on the initial Credit Extension Date (A) no Default or Unmatured Default has occurred and is continuing.
(viii) Copies of the articles or certificate of incorporation of each Subsidiary of the Borrower, (B) the representations and warranties set forth in the Credit Documents are true and correct in together with all material respects on such dateamendments, and a certificate of authorization/existence each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(Cix) all conditions set forth in this Article IV have been satisfied Copies certified by the Secretary or waived Assistant Secretary of each Subsidiary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Subsidiary Guaranty.
(x) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Subsidiary of the Borrower, which shall identify by name and title and bear the signatures of the officers of such Subsidiary authorized to sign the Subsidiary Guaranty, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Required Lenderssuch Subsidiary.
(vxi) The Subsidiary Guaranty duly executed by the Subsidiaries of the Borrower.
(xii) A written opinion of counsel for to the Loan PartiesBorrower and its Subsidiaries, addressed to the Lenders in substantially the form of Exhibit A.
(vixiii) A written opinion of the Guarantor’s counsel, addressed to the Lenders in substantially the form of Exhibit F.
(xiv) Any Notes Note requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(viixv) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viiixvi) The Subsidiary Guaranty signed by the duly authorized officers of the Subsidiaries that are parties theretoSuch other documents as any Lender or its counsel may have reasonably requested.
(ix) The Borrower Pledge Agreement duly executed by an Authorized Officer of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (a) the Borrower representations and warranties contained in Article V are true and correct in all material respects as of such date and (b) the Company has furnished to the Agent the following, all in form and substance satisfactory to the Agent and the Lenders, Agents with sufficient copies for the Lenders:
(i) Copies of the articles or certificate certificates of incorporationincorporation (or similar Constitutive Documents) of the Company, each other Borrower and each Guarantor (each a “Loan Party”), together with all amendmentsamendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization for each Loan Partyincorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by its the Secretary or Assistant Secretary, Secretary of each Loan Party's Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' ’ resolutions and of resolutions or actions of any other body authorizing the execution of the Credit Loan Documents to which such Loan Party it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Loan Party authorized to sign the Credit Loan Documents to which such Loan Party it is a partyparty and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Agent Agents and the Lenders shall be entitled to rely until informed of any change in writing by such the applicable Loan Party.
(iv) A certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by the Chief Financial Officer chief financial officer, treasurer or vice president of finance of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (Aa) no Default or Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties set forth in the Credit Documents are Article V shall be true and correct in all material respects on as of such date, date and (Cc) all conditions set forth no material adverse change in this Article IV have been satisfied the business, financial condition or waived in writing by operations of the Required LendersCompany or any of its Subsidiaries has occurred since August 31, 2006.
(v) A written opinion certificate in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or temporary restraining order which would prohibit the making of counsel for the initial Credit Extensions or any litigation seeking such an injunction or restraining order.
(vi) A certificate of value, solvency and other appropriate factual information in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan PartiesDocuments, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(viviii) Any Notes requested by a Lender pursuant to Section 2.13 2.14 payable to the order of each such requesting Lender.
(viiix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(viiixi) The Subsidiary Guaranty signed by Evidence satisfactory to the duly authorized officers of Administrative Agent that the Subsidiaries that are parties theretoSpin-Off Transaction and the Spin-Off Dividend will be consummated substantially simultaneously with the initial Credit Extension hereunder or promptly thereafter.
(ixxii) The Borrower Pledge Agreement duly executed by an Authorized Officer Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of the Borrower, together with (i) all stock certificates and other instruments and documents representing the "Pledged Securities" (Closing Documents attached hereto as defined in the Borrower Pledge Agreement) accompanied by instruments of transfer and stock powers endorsed in blank, and (ii) Uniform Commercial Code financing statements naming the Borrower as "debtor" and the Agent, for the ratable benefit of the Lenders, as the "secured party" and covering the "Collateral" (as defined in the Borrower Pledge Agreement), evidencing a first priority pledge of and security interest in such "Pledged Securities."Exhibit F.
Appears in 1 contract