Conditions to Borrowing. Unless otherwise agreed to by the Agent and the Banks and subject to the performance by the Loan Parties of their other obligations under the Loan Documents, the Banks shall have no obligation to advance any funds to the Borrower or to issue or renew any Letter of Credit until all legal matters incident to the transactions contemplated by the Loan Documents are resolved in a manner satisfactory to Agent and the Banks and until the Borrower shall have provided Agent with the following: A. This Agreement, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements and other Loan Documents duly executed by the appropriate Loan Parties and all in form and substance satisfactory to Agent and the Banks. B. Evidence satisfactory to Agent and the Banks authorizing the execution and delivery by each Loan Party of this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements and the other Loan Documents. C. Opinions of counsel for the Loan Parties, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require. D. Certificates executed by the Borrower stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the Borrower or Subsidiary has any rights, titles or interests in connection with the Property. E. Evidence satisfactory to Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that the Borrower and the Subsidiary have good and marketable rights, titles and interests in and to the Property and delivery to the Banks of copies of all the documents and instruments pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights, titles and interests. F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof. G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blank. H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(v) hereof. I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto. J. Payment of the Fees provided for herein to be paid upon the execution hereof. ▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks. L. Evidence satisfactory to the Agent that the Borrower shall have established certain accounts with the Agent as set forth in Section 4.5 hereof. M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof. N. A closing certificate executed by the Borrower and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof. O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete. P. The Intercreditor Agreement duly executed by each party thereto. Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 2 contracts
Sources: Loan Agreement (Atlas Pipeline Partners Lp), Loan Agreement (Resource America Inc)
Conditions to Borrowing. Unless otherwise agreed to by the Agent and the Banks and subject to the performance by the Loan Parties of their other obligations under the Loan Documents, the Banks shall have no obligation to advance any funds to the Borrower Borrowers or to issue or renew any Letter of Credit until all legal matters incident to the transactions contemplated by the Loan Documents are resolved in a manner satisfactory to Agent and the Banks and until the Borrower Borrowers shall have provided Agent with the following:
A. This Agreement, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements and other Loan Documents duly executed by the appropriate Loan Parties and all in form and substance satisfactory to Agent and the Banks.
B. Evidence satisfactory to Agent and the Banks authorizing the execution and delivery by each Loan Party of this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements and the other Loan Documents.
C. Opinions of counsel for the Loan Parties, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require.
D. Certificates executed by the Borrower Borrowers stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the any Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. Evidence ▇. ▇▇▇▇▇▇▇▇ satisfactory to Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that the Borrower Borrowers and the Subsidiary Partnerships have good and marketable rights, titles and interests in and to the Property and the Partnership ▇▇▇▇▇ and delivery to the Banks of copies of all the documents and instruments pursuant to which, or establishing that, the Borrower Borrowers and the Subsidiaries have Partnerships acquired such rights, titles and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original stock certificates of stock or membership units of all Restricted Subsidiaries of the BorrowerBorrowers, together with duly executed undated stock powers in blank.
H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(vSection 6.5(vi) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with and all amendments thereto.
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the BorrowerBorrowers, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Payoff letters from each existing creditor to the Borrowers and Subsidiaries whose loans are being repaid with proceeds of the Loans, in form satisfactory to Agent and the Banks.
M. All UCC-3 termination statements, mortgage satisfaction pieces, and other documents deemed reasonably necessary by the Agent and the Banks in order to release the security interests and other Liens in or upon the Borrowers' and the Subsidiaries' properties and assets held by any and all creditors, executed and in recordable form where necessary.
N. Evidence satisfactory to the Agent and the Banks that all conditions precedent to the consummation of the Acquisition have been satisfied or provided for and that all other consideration required in connection with the Acquisition has been paid or delivered (as appropriate), on terms and conditions acceptable to the Banks, for a total effective purchase price of no more than $42,000,000 consisting of $18,000,000 in cash, $18,000,000 in stock of Resource America, Inc., and $6,000,000 in deferred consideration (consisting of $3,000,000 in cash and $3,000,000 in stock), and receipt by the Banks of (A) a fully-executed copy of the Acquisition Agreement and all agreements, instruments, approvals and documents executed and delivered in connection therewith, certified as true, correct and complete by an authorized officer of the Borrowers, (B) any other evidence deemed reasonably necessary by and satisfactory to the Banks that the Acquisition has been consummated upon the terms and conditions of the Acquisition Agreement, including, without limitation, the execution and delivery of all documents and agreements to be executed and delivered pursuant to the Acquisition Agreement, (C) a copy, certified by an authorized officer of Viking, of all corporation action taken by Viking to authorize the Acquisition, and (D) evidence satisfactory to the Banks that all consents, waivers and permits required to be obtained in connection with the Acquisition from any Person have been obtained and are in effect and unconditional.
O. Evidence satisfactory to the Agent that the Borrower Borrowers shall have established certain accounts with the Agent as set forth in Section 4.5 hereof.
M. P. Evidence of the Borrower's Borrowers' insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. Q. A closing certificate executed by each of the Borrower Borrowers and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof.
O. R. After giving effect to the initial Loans hereunder, the Aggregate Collateral Value shall exceed the Aggregate Outstandings by at least $1,000,000, and each Borrower's Individual Collateral Value shall exceed such Borrower's Individual Outstandings.
S. Copies of the five year income Projections of the Borrowers and their Pro Forma Balance Sheets, each Material Contract, together with any amendments thereof, certified by prepared on a Combined basis and acceptable in all respects to the Borrower to be true, correct and completeBanks.
P. The Intercreditor Agreement duly executed by each party theretoT. Evidence satisfactory to the Agent and the Banks that the Borrowers are in compliance with Section 5.16 above on the date hereof.
Q. U. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 1 contract
Conditions to Borrowing. Unless otherwise agreed Advances will be made so long as the Borrower is not in Default. The Revolving Loan will be due and payable on the Maturity Date despite the enumeration of an Event of Default, set forth herein and despite the use of any express or implied term. The obligation of the Bank to by make the Agent and first loan to the Banks and Borrower hereunder is subject to the performance by the Loan Parties of their other obligations under the Loan Documentsconditions precedent in Section 4 below. In addition, the Banks shall have no obligation of the Bank to advance make any funds loans is subject to the Borrower or to issue or renew any Letter conditions precedent that: (a) no event has occurred and is continuing which would constitute an Event of Credit until all legal matters incident to Default; (b) the transactions contemplated Bank has, upon request, received a certificate signed by the Loan Documents are resolved in a manner satisfactory to Agent and the Banks and until the Borrower shall have provided Agent with the following:
A. This Agreement, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements and other Loan Documents duly executed by the appropriate Loan Parties and all in form and substance satisfactory to Agent and the Banks.
B. Evidence satisfactory to Agent and the Banks authorizing the execution and delivery by each Loan Party authorized officer of this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements and the other Loan Documents.
C. Opinions of counsel for the Loan Parties, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require.
D. Certificates executed by the Borrower stating that no defaults have occurred which all representations and warranties contained in this Loan Agreement are unremedied correct as though made on and as of the date of such certificate; (c) the Bank has received such other approvals, opinions, or unwaived under any agreement, lease, assignment or other document or instrument by or through which documents as the Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. Evidence satisfactory to Agent Bank may reasonably request; and the Banks that (d) there has been recorded no material adverse change in the appropriate offices documents financial condition of the Borrower since the date of the Borrower’s financial statements included in its latest annual or quarterly report filed with the Securities and instruments establishing Exchange Commission. The Borrower agrees that the Bank shall, provided that the Borrower and the Subsidiary have good and marketable rightsis not in Default, titles and interests in and make Revolving Loans to the Property and delivery to Borrower upon written authority only of any officer executing the Banks of copies of all the documents and instruments pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights, titles and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries Borrower’s Banking Resolutions on behalf of the Borrower; provided, together however, that the aggregate principal amount of the Revolving Credit Exposure at any time outstanding shall not exceed the Commitment. The Bank shall deliver the Revolving Loan proceeds by direct deposit to an account of the Borrower with duly executed undated stock powers the Bank specified in blank.
H. Delivery writing by such an officer, and all such Revolving Loans shall represent binding obligations of the Borrower as evidenced by the Amended and Restated Committed Revolving Note and any amendment thereto. Interest shall be calculated on the basis of a 360 day year over the actual number of elapsed days. All payments made hereunder shall be applied first to the Agent payment of all original executed intercompany notesfees and expenses, second to late charges hereunder, third to the payment of interest, and then the balance, if any, to shall be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto.
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Evidence satisfactory applied to the Agent that the Borrower shall have established certain accounts with the Agent as set forth in Section 4.5 hereofpayment of principal.
M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed by the Borrower and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof.
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party thereto.
Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 1 contract
Sources: Loan Agreement (Omega Flex, Inc.)
Conditions to Borrowing. Unless otherwise agreed The effectiveness of this Agreement is subject to by the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Banks Lenders and subject dated the Effective Date) of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Borrower, substantially in the form of Exhibit B and covering such other matters relating to the performance by Borrower, this Agreement or the Loan Parties Transactions as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of their other obligations under the Loan DocumentsBorrower, the Banks shall have no obligation to advance authorization of the Transactions and any funds other legal matters relating to the Borrower Borrower, this Agreement or to issue or renew any Letter of Credit until all legal matters incident to the transactions contemplated by the Loan Documents are resolved in a manner satisfactory to Agent and the Banks and until the Borrower shall have provided Agent with the following:
A. This AgreementTransactions, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements and other Loan Documents duly executed by the appropriate Loan Parties and all in form and substance reasonably satisfactory to the Administrative Agent and the Banksits counsel.
B. Evidence satisfactory to (d) The Administrative Agent shall have received a certificate in the form of Exhibit E, dated the Effective Date and signed by the Banks authorizing President, a Vice President or a Financial Officer of the execution Borrower, confirming (i) that the representations and delivery by each Loan Party warranties of the Borrower set forth in this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements Agreement are true and the other Loan Documentscorrect and (b) that no Default has occurred and is continuing.
C. Opinions (e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of counsel for the Loan Parties, addressed all out-of-pocket expenses required to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require.
D. Certificates executed be reimbursed or paid by the Borrower stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. Evidence satisfactory to hereunder. The Administrative Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that shall notify the Borrower and the Subsidiary have good Lenders of the Effective Date, and marketable rightssuch notice shall be conclusive and binding. Notwithstanding the foregoing, titles and interests in and the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the Property and delivery to the Banks of copies of all the documents and instruments foregoing conditions is satisfied (or waived pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights, titles and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event Section 9.02) no later than ten January 31, 2009 (10) days after and, in the date hereof.
G. Delivery to the Agent of all original certificates of stock event such conditions are not so satisfied or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blank.
H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto.
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the Borrowerwaived, the Restricted Subsidiaries and the Property and satisfactory to Agent and the BanksCommitments shall terminate at such time).
L. Evidence satisfactory to the Agent that the Borrower shall have established certain accounts with the Agent as set forth in Section 4.5 hereof.
M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed by the Borrower and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof.
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party thereto.
Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 1 contract
Conditions to Borrowing. Unless The obligation of each Lender to make its Borrowing on the Closing Date hereunder is subject to satisfaction (or waiver in accordance with Section 10.01(a)) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise agreed specified, each properly executed by a Responsible Officer of the Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) original Notes executed by the Borrower in favor of each Lender requesting Notes at least three Business Days prior to the Closing Date;
(iii) such customary certificates of resolutions or other action, incumbency certificates and/or other customary certificates of duly authorized officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the Banks other Loan Documents to which the Borrower is a party;
(iv) certified copies of the Borrower’s Organization Documents and subject to the performance by the Loan Parties a certificate of their other obligations under the Loan Documents, the Banks shall have no obligation to advance any funds good standing with respect to the Borrower or to issue or renew any Letter in its jurisdiction of Credit until all legal matters incident organization;
(v) a favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as special counsel to the transactions contemplated by Borrower, addressed to the Loan Documents are resolved in a manner satisfactory to Administrative Agent and the Banks and until the Borrower shall have provided Agent with the following:
A. This Agreementeach Lender, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements and other Loan Documents duly executed by the appropriate Loan Parties and all in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) a certificate as to the solvency of the Borrower from the Borrower’s chief financial officer, substantially in the form of Exhibit E hereto.
(b) The Arrangers shall have received (a) respective GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and Pharmasset for the three most recent fiscal years ended at least 90 days prior to the Closing Date and (b) respective GAAP unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and Pharmasset for each subsequent fiscal quarter ended at least 60 days before the Closing Date.
(c) The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to Section 4.01(b), 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 the income statement), if such pro forma financial statements would be required by Regulation S-X under the Securities Act and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under the Securities Act on Form S-1.
(d) Since September 30, 2011, there not having occurred any event, change, effect, development, state of fact, condition, circumstance or occurrence that, individually or in the aggregate with other such events, changes, effects, developments, states of fact, conditions, circumstances or occurrences, has had, or would reasonably be expected to have, a Pharmasset Material Adverse Effect.
(e) The Administrative Agent shall have received, for the account of the Administrative Agent, the Arrangers and the Banks.
B. Evidence satisfactory Lenders, as applicable, all fees and invoiced expenses required to Agent and the Banks authorizing the execution and delivery by each Loan Party of this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements and the other Loan Documents.
C. Opinions of counsel for the Loan Parties, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require.
D. Certificates executed be paid by the Borrower stating that no defaults have occurred which are unremedied on or unwaived under any agreementprior to the Closing Date pursuant to the Fee Letter, leasethe Agency Fee Letter or otherwise, assignment or other document or instrument to the extent invoiced and received by or through which the Borrower at least two Business Days prior to the Closing Date.
(f) The Lenders shall have received, at least five calendar days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case that has been reasonably requested by the Lenders in writing at least ten Business Days prior to the Closing Date.
(g) The Tender Offer (and, if a sufficient number of shares are tendered, the Merger) shall have been, or Subsidiary has shall concurrently or substantially contemporaneously with the Borrowing hereunder be, consummated in accordance with the Pharmasset Acquisition Agreement in all material respects; and the Pharmasset Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted, in any rightsrespect that is materially adverse to the Lenders without the Arrangers’ prior written consent (such consent not to be unreasonably withheld or delayed). The Tender Offer (and, titles if a sufficient number of shares are tendered, the Merger) shall have been, or interests shall concurrently or substantially contemporaneously with the Borrowing hereunder be, consummated in compliance in all material respects with applicable Laws and regulatory approvals. Notwithstanding the foregoing, to the extent the Closing Date occurs one Business Day prior to the date the Tender Offer is expected to be consummated (as determined in good faith by the Borrower), the provisions of this clause (g) related to the consummation of the Tender Offer shall not be a condition precedent to the Borrowing hereunder.
(h) The Pharmasset Acquisition Agreement Representations shall be true and correct (solely to the extent the accuracy of such representations is a condition to the Borrower’s obligation to close the Tender Offer under the Pharmasset Acquisition Agreement) and the Specified Representations shall be true and correct in all material respects. For the avoidance of doubt, if the conditions set forth in this Section 4.01 are satisfied, the absence of any Default or Event of Default under the Loan Documents shall not be a condition precedent to the Borrowing hereunder.
(i) All material consents, licenses and approvals (if any) of Governmental Authorities and other Persons required in connection with the Property.
E. Evidence satisfactory to Agent Pharmasset Acquisition and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that the Borrower and the Subsidiary have good and marketable rights, titles and interests in and other Transactions to the Property and delivery extent required as a condition to the Banks of copies of all Borrower’s obligation to consummate the documents and instruments Tender Offer pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights, titles and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blank.
H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto.
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Evidence satisfactory to the Agent that the Borrower Pharmasset Acquisition Agreement shall have established certain accounts with the Agent as set forth in Section 4.5 hereofbeen obtained.
M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed by the Borrower and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof.
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party thereto.
Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 1 contract
Sources: Term Loan Facility Credit Agreement (Gilead Sciences Inc)
Conditions to Borrowing. Unless otherwise agreed The obligation of each Lender to by the Agent and the Banks and make a Loan on each Borrowing Date is subject to receipt of the performance by the Loan Parties of their other obligations under the Loan Documents, the Banks shall have no obligation to advance any funds Borrower's request therefor in accordance herewith and to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower or to issue or renew any Letter of Credit until all legal matters incident to the transactions contemplated by set forth in the Loan Documents are resolved shall be true in a manner satisfactory all material aspects on and as of such Borrowing Date, except for any representation and warranty made as of an earlier date, which representation and warranty shall be true on and as of such earlier date.
(b) At the time of and immediately after giving effect to Agent the Borrowing, no Default shall have occurred and be continuing.
(c) The Effective Date shall have occurred on or prior to November 30, 2000.
(d) Solely if such Borrowing Date is the Bridge Borrowing Date and the Banks and until aggregate principal amount of the Bridge Loans to be made on such date is less than the aggregate amount of the Bridge Commitments then in effect, the Borrower shall have provided Agent with delivered to each Lender, at least five Business Days prior to such Borrowing Date, evidence reasonably satisfactory to the following:Lenders that the Borrower shall have, after giving effect to the making of such Bridge Loans, immediately available capital in such amount as shall be necessary to implement the Business Plan.
A. This Agreement(e) Solely if such Borrowing Date is the Bridge Borrowing Date, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements and other Loan Documents duly executed by Administrative Agent (or its counsel) shall have received from the appropriate Loan Parties and all in form and substance Borrower either (i) a counterpart of the Escrow Agreement signed on behalf of the Borrower or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of the Escrow Agreement) that the Borrower has signed a counterpart of the Escrow Agreement.
(f) Solely if such Borrowing Date is the Bridge Borrowing Date, the Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the BanksLenders and dated the Effective Date) of special regulatory counsel for the Borrower, as reasonably agreed upon by counsel for the Borrower and the Administrative Agent.
B. Evidence satisfactory to (g) Solely if such Borrowing Date is the Rollover Borrowing Date, the Administrative Agent and the Banks authorizing Borrower shall have entered into a Registration Rights Agreement reasonably satisfactory to the execution Borrower and delivery by each Loan Party of this Agreementthe Required Lenders in connection with the Rollover Loans.
(h) Solely if such Borrowing Date is the Rollover Borrowing Date, the Notes, Administrative Agent shall have received a favorable written opinion (addressed to the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements Administrative Agent and the other Loan Documents.
C. Opinions Lenders and dated the Rollover Borrowing Date) of counsel for the Loan PartiesBorrower, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require.
D. Certificates executed agreed upon by the Borrower stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. Evidence satisfactory to Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that counsel for the Borrower and the Subsidiary have good Administrative Agent. The Borrowing shall be deemed to constitute a representation and marketable rights, titles and interests in and to the Property and delivery to the Banks of copies of all the documents and instruments pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights, titles and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blank.
H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto.
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Evidence satisfactory to the Agent that the Borrower shall have established certain accounts with the Agent as set forth in Section 4.5 hereof.
M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed warranty by the Borrower and certifying on the accuracy of the representations and warranties made date thereof as to the Banks matters specified in the Loan Documents, compliance with all agreements clauses (a) and covenants set forth therein and that there exists no default under Section 9 hereof(b) of this Section.
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party thereto.
Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 1 contract
Sources: Bridge Financing Agreement (Choice One Communications Inc)
Conditions to Borrowing. Unless otherwise agreed to by the Agent and the Banks and subject to the performance by the Loan Parties Borrower of their its other obligations under the Loan Documents, the Banks shall have no obligation to advance any funds to the Borrower or Borrower, to issue or renew any Letter of Credit or to continue any loans outstanding under the Existing Loan Agreement until all legal matters incident to the transactions contemplated by the Loan Documents are resolved in a manner satisfactory to Agent and the Banks its counsel and until the Borrower shall have provided Agent with the following:
A. This Agreement, the The Notes, Mortgage, Guaranty AgreementsSecurity Agreement (Partnerships), Security AgreementsAgreement (Note), Pledge Agreement, Financing Statements and other Loan Documents duly executed by the appropriate Loan Parties and all in form and substance satisfactory to Agent and the BanksAgent.
B. Evidence satisfactory to Agent and the Banks authorizing the execution and delivery by each Loan Party Borrower of this Agreement, the Notes, the Mortgage, the Guaranty AgreementsSecurity Agreement (Partnerships), the Security AgreementAgreement (Note), the Pledge Agreement, the Financing Statements and the other Loan Documents.
C. Opinions of counsel for the Loan PartiesBorrower, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require, including opinions that on the dates of delivery of such opinions and at the times the funds to be lent pursuant to this Agreement are advanced (a) the representations set forth in Sections 2.1, 2.2 and 2.6 hereof (which representations shall be repeated at length in such opinions) are accurate, (b) to the best of the knowledge of Borrower's counsel, the representations set forth in Sections 2.5, 2.9, 2.10, 2.11, 2.12 and 2.13 hereof (which representations shall be repeated at length in such opinions) are accurate, and (c) the interest rate options applicable to the Notes, the Commitment Fee or any other Fee provided for herein, the maintenance of the Borrower's principal accounts as required by Section 3.4 hereof and the depositing therein of substantially all of Borrower's funds, and the payment of all other amounts to be paid by Borrower pursuant to this Agreement and the other Loan Documents do not violate any usury -44- or other law of the State of Ohio or the Commonwealth of Pennsylvania relating to interest payments.
D. Opinions, addressed to the Agent and the Banks, of Borrower's counsel or such other counsel satisfactory to Agent, in form and substance satisfactory to Agent's counsel, that on the dates of delivery of such opinions and at the times the funds to be lent pursuant to this Agreement are advanced (a) Borrower and the Partnerships have good and marketable rights, titles and interests in and to all the Property and the Partnership ▇▇▇▇▇, (b) all documents or instruments pursuant to which, or establishing that, Borrower and the Partnerships acquired interests in the Property and the Partnership ▇▇▇▇▇ are valid and subsisting and have not been modified or amended, (c) the extent of Borrowers and the Partnerships' interests in the Property and the Partnership ▇▇▇▇▇ are as described in the documents and instruments pursuant to which, or establishing that, Borrower and the Partnerships acquired their interests in the Property and the Partnership ▇▇▇▇▇ and (d) the Property and the Partnership ▇▇▇▇▇ are free and clear of all liens and encumbrances except such liens and encumbrances as shall be acceptable to Agent in its sole discretion.
E. Certificates executed by the Borrower stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. F. Evidence satisfactory to Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that the Borrower and the Subsidiary Partnerships have good and marketable rights, titles and interests in and to the Property and the Partnership ▇▇▇▇▇ and delivery to the Banks Agent of copies of all the documents and instruments pursuant to which, or establishing that, the Borrower and the Subsidiaries have Partnerships acquired such rights, titles and interests.
F. G. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blankDocument.
H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of the each Loan Party Borrower and a certificate of incumbency for eacheach Borrower.
I. A mortgagee title insurance policy issued in favor of Bank with respect to the premises located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, in form and substance acceptable to which it is a party, Agent and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments theretoits counsel.
J. Payment of the Fees provided for herein to be paid upon in the execution hereof.
▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Evidence satisfactory to the Agent that the Borrower shall have established certain accounts with the Agent as set forth in Section 4.5 hereof.
M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed by the side letter among Borrower and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof.
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party Agent relating thereto.
Q. K. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks Agent may reasonably request.
Appears in 1 contract
Conditions to Borrowing. Unless otherwise agreed On the Closing Date:
(a) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02).
(b) The representations and warranties set forth in Article III, in each other Loan Document and in Section 6 of the Commitment Letter shall be true and correct in all material respects on and as of the date of the Borrowing with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date.
(c) At the time of and immediately after the Borrowing, no Default or Event of Default shall have occurred and be continuing.
(d) The Transactions shall be consummated and the conditions precedent to the ABL Facility becoming effective shall be satisfied, in each case, simultaneously with the Closing Date in accordance with applicable law and on the terms described in the Commitment Letter.
(e) The Borrower shall have received $1,650,000,000 in aggregate commitments pursuant to and under the ABL Facility. The terms and conditions of the ABL Facility (including, but not limited to, terms and conditions relating to the interest rate, fees, amortization, maturity, lien subordination, representations and warranties, covenants, events of default and remedies), shall be satisfactory in all respects to the Joint Lead Arrangers, it being acknowledged that the terms and conditions expressly set forth in the executed commitment letter (including the exhibits thereto) and executed fee letter for the ABL Facility dated as of July 9, 2012 and provided to the Joint Lead Arrangers are satisfactory to the Joint Lead Arrangers.
(f) Except as disclosed in earnings guidance and forecasted revenue trends of the Borrower and its Subsidiaries disclosed to the Joint Lead Arrangers prior to the date of the Commitment Letter (but not the underlying circumstances giving rise to such earnings guidance and forecasted revenue trends, but solely to the extent such underlying circumstances impact the Borrower and its Subsidiaries in a manner that is adverse compared with the impact shown on the face of such earnings guidance or forecasted revenue trends) and except as disclosed in the Borrower’s public filings with the SEC prior to the date of the Commitment Letter (but not the underlying circumstances giving rise to such disclosure, but solely to the extent such underlying circumstances impact the Borrower and its Subsidiaries in a manner that is adverse compared with the impact apparent on the face of such public filings), there not having occurred any event, change or condition since February 25, 2012 that, individually or in the aggregate, has or is reasonably expected to have a Material Adverse Effect on the business, assets, liabilities, operations, condition (financial or otherwise), operating results or projections of the Borrower and its Subsidiaries taken as a whole.
(g) The Administrative Agent shall have received, on behalf of itself and the Lenders, (i) a favorable written opinion of ▇▇▇▇▇▇ & Whitney LLP, counsel for the Borrower, substantially to the effect set forth in Exhibit K and (ii) a favorable written opinion of local counsel in those jurisdictions of organization of Loan Parties reasonably requested by the Administrative Agent (or, to the extent agreed by the Administrative Agent with respect to particular jurisdictions, a favorable written opinion of the Vice President – Business Law of the Borrower), in each case (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Banks Lenders and subject (C) covering such other matters relating to the performance by the Loan Parties of their other obligations under the Loan Documents, the Banks shall have no obligation to advance any funds to the Borrower or to issue or renew any Letter of Credit until all legal matters incident to the transactions contemplated by the Loan Documents are resolved in a manner satisfactory to Agent and the Banks Transactions as the Administrative Agent shall reasonably request, and until the Borrower hereby requests such counsel to deliver such opinions.
(h) The Administrative Agent shall have provided received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or the Assistant Secretary (or other Responsible Officer acceptable to the Administrative Agent) of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating agreement of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary (or other Responsible Officer acceptable to the Administrative Agent) executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
(i) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming compliance with the following:conditions precedent set forth in Sections 4.01(b) and 4.01(c).
A. This Agreement, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements (j) The Administrative Agent 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 required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(k) The Security Documents (other than with respect to the Fixed Asset Collateral) shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document (other than with respect to the Fixed Asset Collateral) and in the Intercreditor Agreement. The Intercreditor Agreement shall have been duly executed by the appropriate ABL Collateral Agent and shall be in full force and effect on the Closing Date.
(l) The Collateral Agent shall have received the results of a search of the UCC filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.01 or have been or will be contemporaneously released or terminated.
(m) The Administrative Agent shall have received certificates of insurance for the insurance policies required by Section 5.07 and the applicable provisions of the other Loan Documents, each of which shall, if required by the Administrative Agent, be endorsed to or otherwise include the coverages required by Section 5.07, in each case in form and substance reasonably satisfactory to the Administrative Agent (including customary lender’s loss payable endorsements and naming the Administrative Agent as an additional insured), in each case in form and substance reasonably satisfactory to the Administrative Agent.
(n) All amounts due or outstanding in respect of the Existing Senior Facilities shall have been (or substantially simultaneously with the closing under the Term Facility shall be) paid in full, all commitments (if any) in respect thereof terminated and all guarantees (if any) thereof and security (if any) therefor discharged and released. Immediately after giving effect to the Transactions and the other transactions contemplated hereby the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock other than (a) Indebtedness outstanding under this Agreement, (b) Indebtedness outstanding under the ABL Facility and (c) other Permitted Indebtedness.
(o) The Administrative Agent shall have received (a) GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for the 2010, 2011 and 2012 Fiscal Years and (b) GAAP unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each subsequent Fiscal Quarter ended at least 30 days before the Closing Date, which financial statements shall be in a form consistent with the financial statements or forecasts previously provided to the Administrative Agent.
(p) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower in form and substance satisfactory to the Administrative Agent and the Banks.
B. Evidence satisfactory to Agent and the Banks authorizing the execution and delivery by each Loan Party of this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements and the other Loan Documents.
C. Opinions of counsel for the Loan Parties, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require.
D. Certificates executed by the Borrower stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. Evidence satisfactory to Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing certifying that the Borrower and its Subsidiaries, on a Consolidated basis after giving effect to the Subsidiary Transactions and the other transactions contemplated hereby, are Solvent.
(q) All requisite Governmental Authorities and third parties shall have good approved or consented to the Transactions and marketable rightsthe other transactions contemplated hereby to the extent required, titles all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that would reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(r) The occurrence of the Closing Date, the grants of security interests in the Collateral for the Term Facility and the collateral for the ABL Facility (in the case of the Fixed Asset Collateral, whether such grant of security interest is on or after the Closing Date), the making of the Loans and the incurrence of the other Obligations, the Guarantee of the Obligations by the Guarantors pursuant to the Property Facility Guaranty and delivery the consummation of the Transactions will not violate any of the ASC Indenture, the New Albertson’s Indenture, the SVU Indenture or any other Material Indebtedness, or trigger any of the equal and ratable security provisions thereof or give rise to any obligation of the Borrower or any of its Subsidiaries to Guarantee any indebtedness or other obligations incurred under or pursuant to the Banks SVU Indenture, the New Albertson’s Indenture, the ASC Indenture or any other Material Indebtedness, as evidenced by (a) a certificate of copies a Responsible Officer of all the documents and instruments pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights(b) a customary no conflicts opinion from Borrower’s counsel, titles in each case in form and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blank.
H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto.
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Evidence substance satisfactory to the Agent that Administrative Agent.
(s) The Closing Date Collateral List shall include Real Estate Collateral Properties (and the Borrower Equipment located thereon) having an aggregate Value after giving effect to the Concentration Limits of not less than the Initial Required Collateral Amount.
(t) The Lenders shall have established certain accounts with received, at least five Business Days prior to the Agent as set forth in Section 4.5 hereofClosing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
M. Evidence of the Borrower's insurance satisfactory (u) The Borrowing shall be deemed to the Agent constitute a representation and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed warranty by the Borrower and certifying on the accuracy of the representations and warranties made Closing Date as to the Banks matters specified in the Loan DocumentsSections 4.01(b), compliance with all agreements 4.01(c) and covenants set forth therein and that there exists no default under Section 9 hereof4.01(q).
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party thereto.
Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 1 contract
Conditions to Borrowing. Unless otherwise agreed to by SECTION 4.01. The obligation of the Agent and the Banks and Bank hereunder is subject to the performance satisfaction of the following conditions:
(a) receipt by the Loan Parties of their other obligations under the Loan Documents, the Banks shall have no obligation to advance any funds to Bank from the Borrower or of a duly executed counterpart of this Agreement signed by the Borrower and the Trustees on behalf of the Trust;
(b) receipt by the Bank of the duly executed Note;
(c) receipt by the Bank of (i) an opinion of counsel for the Borrower and (ii) an opinion of counsel for the Trustee, both in forms acceptable to issue or renew any Letter of Credit until all legal Bank covering such matters incident relating to the transactions contemplated hereby as the Bank may reasonably request;
(d) receipt by the Loan Documents are resolved in a manner satisfactory Bank of all documents which the Bank may reasonably request relating to Agent the existence of the Borrower, the corporate authority for and the Banks and until the Borrower shall have provided Agent with the following:
A. This validity of this Agreement, the Notes, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements Note and the other Loan Documents duly executed by the appropriate Loan Parties Documents, and any other matters relevant hereto, all in form and substance satisfactory to Agent the Bank, including without limitation a certificate of incumbency of the Borrower, signed by the Secretary or an Assistant Secretary of the Borrower, certifying as to the names, true signatures and incumbency of the Banks.
B. Evidence satisfactory officer or officers of the Borrower authorized to Agent execute and deliver the Banks Loan Documents, and certified copies of the following items: (i) the Borrower’s Articles of Incorporation, (ii) the Borrower’s Bylaws, (iii) a certificate of the Secretary of State (or other appropriate office) of the jurisdiction of the Borrower’s incorporation as to the good standing of the Borrower as a corporation of such jurisdiction, and (iv) the action taken by the Board of Directors of the Borrower authorizing the execution Borrower’s execution, delivery and delivery by each Loan Party performance of this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements Note and the other Loan Documents.Documents to which the Borrower is a party;
C. Opinions (e) the Bank shall have received (i) the original fully executed ESOP Loan Documents (ii) the Collateral Assignment, (iii) stock certificates evidencing all of the shares of the Borrower Stock, registered in the name of the Trust, together with stock powers duly executed in blank, (iv) a copy of all documents related to the ESOP Transaction, each certified on such date, (v) a copy of the action of the Trustees authorizing the borrowing of the ESOP Loan thereunder, and (vi) the written legal opinion of each of the Borrower’s counsel for the Loan Parties, addressed to Agent and the BanksTrustee’s counsel concerning the due authorization, satisfactory to Agent's counselexecution, relating to delivery and enforceability of the ESOP, the Trust Agreement, the ESOP Loan Documents, and containing such matters other opinions as the Agent Bank may reasonably require.
D. Certificates executed by the Borrower stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. Evidence satisfactory to Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that the Borrower and the Subsidiary have good and marketable rights, titles and interests in and to the Property and delivery to the Banks of copies of all the documents and instruments pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights, titles and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blank.
H. Delivery to the Agent of all original executed intercompany notes, if any, to be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for each, together with certified resolutions of each Loan Party's board of directors (or equivalent body) authorizing the execution of the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto.
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Evidence satisfactory to the Agent that the Borrower shall have established certain accounts with the Agent as set forth in Section 4.5 hereof.
M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed by the Borrower and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof.
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party thereto.
Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
Appears in 1 contract
Sources: Business Loan and Security Agreement (Community Bankshares Inc /Ga/)
Conditions to Borrowing. Unless otherwise agreed In addition to by any other requirements set forth herein, the Agent and obligation of Lender to fund the Banks and Loan is subject to the performance by prior fulfillment (or waiver, in Lender’s sole discretion) of each of the Loan Parties of their other obligations under the Loan Documents, the Banks following conditions precedent:
(a) Lender shall have no obligation received the original of this Agreement executed by Borrowers;
(b) Borrowers shall have executed and delivered to advance any funds Lender the Note;
(c) Maritrans Honour Co., shall have executed and delivered to Lender the Borrower Assignment of Insurances;
(d) Maritrans Honour Co., shall have executed and delivered to Lender the Preferred Marine Mortgage covering the Vessel, which Preferred Marine Mortgage shall be filed with the U.S. Coast Guard National Vessel Documentation Center as a first and only Lien on the Vessel;
(e) Lender shall have received the Vessel Liens Certificate by Maritrans Honour Co.;
(f) Lender shall have received the Assignment of Demise Charters executed by Maritrans Honour Co. and acknowledged by Charterer;
(g) Lender shall have approved the Charter Agreement;
(h) Lender shall have received and approved insurance policies covering the Vessel;
(i) Lender shall have received certificates of insurance covering the Vessel naming Lender as additional or co-insured and loss payee;
(j) Lender shall have filed UCC Financing Statements naming Maritrans Honour Co., as debtor, and describing the Collateral, and such other documents reasonably requested by Lender in order to issue or renew any Letter assure the perfection and priority of Credit until all legal matters incident to its security interests in the transactions contemplated by Collateral;
(k) Lender and its counsel shall have been satisfied with the Loan Documents are resolved in a manner satisfactory to Agent organizational documents of Borrowers and the Banks structure of the relationships among Borrowers, Charterer and until the Borrower affiliates of Borrower;
(l) Lender shall have provided Agent with received certified resolutions of the following:
A. This AgreementBorrowers, the Notesand incumbency certificates, Mortgage, Guaranty Agreements, Security Agreements, Pledge Agreement, Financing Statements and other Loan Documents duly executed by the appropriate Loan Parties and all other documents requested by Lender hereunder, in form and substance satisfactory to Agent and Lender;
(m) There has been no material adverse change in the Banksfinancial condition of Maritrans Inc., since March 31, 2004.
B. Evidence satisfactory to Agent (n) Lender shall have received the Documentation Fee, which shall be fully earned and the Banks authorizing the execution and delivery by each Loan Party nonrefundable;
(o) Lender shall have received satisfactions of this Agreement, the Notes, the Mortgage, the Guaranty Agreements, the Security Agreement, the Pledge Agreement, the Financing Statements and the other Loan Documents.
C. Opinions of counsel for the Loan Parties, addressed to Agent and the Banks, satisfactory to Agent's counsel, relating to such matters as the Agent may reasonably require.
D. Certificates executed by the Borrower stating that no defaults have occurred which are unremedied or unwaived under any agreement, lease, assignment or other document or instrument by or through which the Borrower or Subsidiary has any rights, titles or interests in connection with the Property.
E. Evidence satisfactory to Agent and the Banks that there has been recorded in the appropriate offices documents and instruments establishing that the Borrower and the Subsidiary have good and marketable rights, titles and interests in and to the Property and delivery to the Banks of copies of all the documents and instruments pursuant to which, or establishing that, the Borrower and the Subsidiaries have acquired such rights, titles and interests.
F. Evidence satisfactory to Agent and the Banks of the recordation and filing of the Mortgage, the Financing Statements and any other Loan Document as soon as possible after the date hereof, but in any event no later than ten (10) days after the date hereof.
G. Delivery to the Agent of all original certificates of stock or membership units of all Restricted Subsidiaries of the Borrower, together with duly executed undated stock powers in blank.
H. Delivery to the Agent of all original executed intercompany notespreferred mortgages, if any, covering the Vessel from any mortgagee of record, and satisfactions or releases of any claims of Lien of record against the Vessel, if any, and UCC termination statements of UCC filings, if any, covering any Collateral;
(p) Lender shall have received, in form and substance reasonably satisfactory to be pledged in accordance with Subsection 6.5(v) hereof.
I. A current certificate of good standing of each Loan Party and a certificate of incumbency for eachLender, together with certified resolutions of each Loan Party's board of directors (such other assurances, certificates, documents or equivalent body) authorizing the execution of consents related to the Loan Documents to which it is a party, and the performance by such Loan Party pursuant thereto, and certified copies of each Loan Party's articles or certificate of incorporation, partnership agreement, operating agreement, by-laws, or other formation, organizational or governing documents, together with all amendments thereto.as Lender may reasonably require; and
J. Payment of the Fees provided for herein to be paid upon the execution hereof.
▇. ▇▇▇▇ searches covering the Borrower, the Restricted Subsidiaries and the Property and satisfactory to Agent and the Banks.
L. Evidence satisfactory to the Agent that the Borrower (q) Lender shall have established certain accounts with the Agent as set forth received an opinion of counsel to Borrower in Section 4.5 hereofform and substance acceptable to Lender.
M. Evidence of the Borrower's insurance satisfactory to the Agent and the Banks and which in all other respects comply with the requirements of Section 5.11 hereof.
N. A closing certificate executed by the Borrower and certifying the accuracy of the representations and warranties made to the Banks in the Loan Documents, compliance with all agreements and covenants set forth therein and that there exists no default under Section 9 hereof.
O. Copies of each Material Contract, together with any amendments thereof, certified by the Borrower to be true, correct and complete.
P. The Intercreditor Agreement duly executed by each party thereto.
Q. Such other documents and instruments, and evidence of the performance by the Borrower of such other obligations, as the Banks may reasonably request.
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