Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2). (a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers. (b) The Administrative Agent (or its counsel) shall have received the following: (i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement; (ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement; (iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents; (iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower; (v) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request; (vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole; (vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof; (viii) [Reserved.]; (ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and (x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers. (c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below). (d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) initially to make Loans and the obligation of the Issuing Bank initially to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersBanc of America Securities, LLC, as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, duly executed Notes payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest a duly executed Subsidiary Guarantee Agreement and fees), or will be repaid substantially concurrently with the closing of this Agreement, Indemnity and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Contribution Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary Secretary, or manager or member, as applicable, of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company operating agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of incorporation or organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial Responsible Officer, confirming compliance with the conditions set forth in paragraphs (a), (b) and (c) of Section 3.2 and, further, demonstrating compliance with Sections 6.1 and 6.2 as of the most recent fiscal quarter ended;
(viii) a certificate dated the Closing Date and signed by a Responsible Officer certifying that (A) that since March 31, 2007 there has been no Default event or Event of Default existscondition which has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, and (B) all representations and warranties as to the absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower set forth Borrower, threatened in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall any court or before any arbitrator or governmental authority that could reasonably be expected to have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeMaterial Adverse Effect;
(viiix) if a Borrowing will certified copies of all consents, approvals, authorizations, registrations or filings required to be made on or obtained by each Loan Party in connection with the Closing Date, a Loans and any transaction being financed with the proceeds of the Loans;
(x) duly executed Notice payoff letters, in form and substance satisfactory to the Administrative Agent, executed by each lender holding Indebtedness to be refinanced at closing, including but not limited to Indebtedness under the Borrower’s $100,000,000 Revolving Credit Agreement dated December 10, 2004, together with evidence satisfactory to the Administrative Agent as to the termination of Borrowing the Commitments thereunder, the payment in full of all obligations owing thereunder and the release of any and all liens and security interests securing such obligations;
(xi) UCC, judgment and tax lien searches in the jurisdiction of the chief executive office and jurisdiction of incorporation or organization of each Loan Party, together with copies of all financing statements on file in such jurisdictions (with all attachments) and evidence that no Liens exist on any assets or properties of any such Loan Party (other than Liens permitted by Section 7.2);
(xii) a certificate of insurance issued on behalf of insurers of each Loan Party, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by such Loan Party, naming the Administrative Agent as additional insured under all liability insurance;
(xiii) duly executed Notices of Borrowing, if applicable; and
(xiv) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Watsco Inc), Revolving Credit Agreement (Watsco Inc), Revolving Credit Agreement (Watsco Inc)
Conditions to Effectiveness. The obligations This Amendment shall become effective as of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).
(a) The Effective Date when and if Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have has received the following:
(ia) a counterpart of this Agreement signed Amendment, duly executed by or on behalf of Borrower, each party hereto or written evidence satisfactory to the Guarantor and Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this AgreementAgent;
(iib) evidence that (A) if requested by Administrative Agent, a certificate of a Responsible Officer, certifying the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest names and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” true signatures of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing officers of Borrower authorized to execute and deliver this AgreementAmendment;
(iiii) if requested by Administrative Agent, for Borrower and each Guarantor that is not a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)partnership, attaching and certifying copies of its bylaws and of the resolutions of its boards the Board of directorsManagers or Board of Directors of Borrower or such Guarantor, approving and authorizing the execution, delivery and performance by Borrower or such Guarantor of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents this Amendment and the transactions contemplated therein as hereby, certified by a Responsible Officer of Borrower or such Guarantor; and (ii) for each Guarantor that is a partnership, evidence of approval and authorization of the Administrative Agent execution, delivery and performance by such Guarantor of this Amendment and the transactions contemplated hereby, accompanied by a certificate from the general partner or the Required Lenders shall reasonably requestother appropriate managing partner;
(vid) if requested by Administrative Agent, a certificate in the form of Exhibit 3.1(b)(vi)a Responsible Officer (or general partner or other appropriate managing partner, dated the Closing Date and signed by a Financial Officeras applicable) of each Guarantor, certifying that (A) no Default or Event of Default exists, (B) all representations the names and warranties true signatures of the Borrower set forth in the Credit Documents are true officers of such Guarantor authorized to execute and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that deliver this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof)Amendment; and
(xe) such other assurances, certificates, Loan Documents, other documents, certificates or information consents and opinions as the Joint Lead Arrangers Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangersrequire.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (Azz Inc), Credit Agreement (Azz Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2 or otherwise permitted to be satisfied after the Closing Date pursuant to Section 5.16):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Lead Arrangers and their Affiliates (including reasonable fees, charges and disbursements of one primary counsel to the Administrative Agent, one local counsel in each applicable jurisdiction and any special regulatory counsel) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf email transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws and (A) such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, which shall, if a recently certified copy thereof has been received by the Loan Parties from such Secretary of State prior to the Closing Date, be certified as of a recent date by the Secretary of State of the jurisdiction of organization of such Loan Party, (B) such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable, (C) the resolutions of its boards such Loan Party’s board of directors, managers, members, general partner or other equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party, (D) certificates of good standing or existence, as applicable, from the Secretary of State of the jurisdiction of incorporation or organization of such Loan Party and certifying each other jurisdiction where the failure of such Loan Party to be qualified to do business as a foreign company would have a Material Adverse Effect, in each case as of a recent date, and (E) a certificate of incumbency containing the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which such Loan Party is a party;
(iviii) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion opinions of inside or outside ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., Nevada counsel to the Loan Parties, in each case, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viiv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(iv), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the Related Transactions, (A) no Default or Event of Default existshas occurred and is continuing on the Closing Date, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), (C) since September 30December 31, 20202018, there shall has been no change which has had or could reasonably be expected to have a Material Adverse Effect and (D) the conditions set forth in clause (b)(vii) and (xiii) below have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholesatisfied;
(viiv) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with for each Borrowing on the Closing Date;
(vi) a report setting forth the sources and uses of the proceeds hereof;
(viiivii) [Reserved.]all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents, the other Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixviii) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated combined basis for the fiscal quarter ending on December Fiscal Quarter ended March 31, 2020 2019 and the Fiscal Quarter ended June 30, 2019, including, in each case, the related statements of income and cash flows, (B) the audited consolidated combined financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Year ended December 31, 2018, including in each case the related statements of income, shareholders’ equity and cash flows, (C) a pro forma balance sheet and related pro forma statements of income and cash flows of the Borrower and its Subsidiaries (for the avoidance of doubt, excluding Ensign and its Subsidiaries) as of and for (x) the twelve-month period ending September 30on December 31, 2020 2018 and (it being agreed that this clause y) the twelve-month period ending on the last day of each Fiscal Quarter ending after December 31, 2018 and at least 60 days prior to the Closing Date, in each case, prepared so as to give effect to the Related Transactions as if the Related 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) and (D) financial projections of the Borrower and its Subsidiaries (for the avoidance of doubt, excluding Ensign and its Subsidiaries) on an annual basis through December 31, 2024;
(ix) is satisfied by a duly completed and executed Compliance Certificate, including calculations of the Borrower’s filings with financial covenants set forth in Article VI hereof as of June 30, 2019, calculated on a pro forma basis as if the Securities initial Borrowing(s) had been funded and Exchange Commission prior to the date hereofPennant Transaction and the other Related Transactions had occurred, in each case, as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations); and;
(x) a certificate, dated the Closing Date and signed by the chief financial officer of the Borrower, confirming that the Borrower is, and the Borrower and its Subsidiaries, on a consolidated basis, are, Solvent before and after giving effect to the funding of the initial Borrowing(s) and the consummation of the Pennant Transaction and the other Related Transactions contemplated to occur on the Closing Date;
(xi) the Guaranty and Security Agreement, duly executed by the Borrower and each of its Domestic Subsidiaries (other than the Excluded Subsidiaries), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax and judgment lien search reports in all necessary or appropriate jurisdictions, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other documentsthan Permitted Encumbrances and other Liens permitted under Section 7.2 and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries (other than the Excluded Subsidiaries) owned directly by any Loan Party; provided that, in the case of Capital Stock of any Foreign Subsidiary that is a CFC and Capital Stock of any Pass-Through Foreign Holdco, such original certificates shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or information such Pass-Through Foreign Holdco, as applicable, (F) stock or membership interest powers or other appropriate instruments of transfer executed in blank and (G) a master intercompany promissory note duly executed by the Borrower and its Subsidiaries;
(xii) certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the Joint Lead Arrangers case may reasonably requestbe, all together with endorsements in form and substance reasonably satisfactory to the Joint Lead Arrangers.Administrative Agent;
(cxiii) To evidence that (A) Ensign has declared the extent requested by dividend or distribution constituting the Administrative Agent in writing not less than five Pennant Transaction and (5B) Business Days prior to the Pennant Transaction has been consummated or will be consummated substantially concurrently with the effectiveness of this Agreement on the Closing Date, in each case, in form and substance satisfactory to the Administrative Agent shall have received, not later than two Agent;
(2xiv) calendar at least three (3) days prior to the Closing Date, (A) all documentation and other information with respect to the Borrower and each other Loan Party that the Administrative Agent or any Lender reasonably believes determines is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the Patriot Act and the Beneficial Ownership Regulation, to the extent reasonably requested by the Administrative Agent at least ten (as defined below).
(d) At least five (510) days prior to before the Closing Date, to the extent and (B) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower; and
(xv) an executed payoff or release letter, executed by the administrative agent under the Ensign Credit Agreement, together with (a) UCC-3 or other appropriate termination statements releasing all Liens of the administrative agent and lenders under the Ensign Credit Agreement and related loan documents upon any of the personal property of the Borrower and its Subsidiaries granted pursuant thereto and (b) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence the release of the Borrower and its Subsidiaries from their respective obligations under the Ensign Credit Agreement and related loan documents, in each case of the foregoing, in form and substance reasonably satisfactory to the Administrative Agent (such documents, and the release of the Borrower and its Subsidiaries pursuant thereto, the “Closing Date Release”). Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 2 contracts
Sources: Credit Agreement (Pennant Group, Inc.), Credit Agreement (Pennant Group, Inc.)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arranger and their Affiliates (including reasonable fees, charges and disbursements of one firm of outside counsel for the Administrative Agent, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArranger (including the Fee Letters).
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of (x) its bylaws bylaws, or partnership agreement or limited liability company agreement (or certifying that its bylaws, or partnership agreement or limited liability company agreement have not been amended, restated or otherwise modified since the Original Closing Date), (y) its articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of such Loan Party (or certifying that its articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents have not been amended, restated or otherwise modified since the Original Closing Date), and of (z) the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowereach Loan Party;
(viv) a favorable written opinion opinions of inside or outside ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Squire ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders);
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that immediately after giving effect to consummation of the transactions contemplated to occur on the Closing Date, including consummation of the transactions contemplated hereby and under the Note Purchase Agreement, (A) no Default or Event of Default existsexists or will result therefrom, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be true and correct in all respects), (C) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in which has had or could reasonably be expected to have a Material Adverse Effect and (D) (x) the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects Liquidity of the Borrower and its subsidiaries taken as a wholethe Guarantors shall be no less than $250,000,000 and (y) the Statutory Surplus of RIC is not less than $100,000,000;
(vi) [reserved];
(vii) if a Borrowing will certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made on or obtained under any Requirement of Law, or by any Material Agreement of any Loan Party, in connection with the Closing Dateexecution, a duly executed Notice of Borrowing delivery, performance, validity and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses enforceability of the proceeds hereofLoan Documents or any of the transactions contemplated hereby or thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Term Loans shall be ongoing;
(viii) [Reserved.reserved];
(ix) copies of (A) the quarterly financial statements a duly completed and executed Compliance Certificate, including calculations of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending covenants set forth in Article VI hereof as of September 30, 2020 2019, calculated on a pro forma basis as if the NPA Financing had been consummated as of the first day of the relevant period for testing compliance (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereofsetting forth in reasonable detail such calculations); and;
(x) such other documentsevidence that (a) the Note Purchase Agreement shall have been executed and delivered by the parties thereto on terms and conditions acceptable to the Administrative Agent and (b) the NPA Notes shall have been issued by the Borrower in accordance with the terms of the Note Purchase Agreement;
(xi) the Reaffirmation Agreement, certificates or information as duly executed by the Joint Lead Arrangers may reasonably request, all Loan Parties and in form and substance reasonably satisfactory to the Joint Lead Arrangers.Administrative Agent;
(cxii) To the extent requested Intercreditor Agreement, in form and substance satisfactory to the Administrative Agent, duly executed by each of the parties thereto;
(xiii) [reserved];
(xiv) a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming that the Loan Parties and their Subsidiaries, taken as a whole, are Solvent immediately after giving effect to the consummation of the transactions contemplated to occur on the Closing Date;
(xv) copies of all Material Agreements listed on Schedule 3.1(b)(xv) that were not been provided in connection with the Existing Credit Agreement;
(xvi) the Escrow Agreements together with evidence that the Borrower shall have remitted $24,937,500.00 to the Escrow Agent in connection therewith; and
(xvii) delivery of such other documents, certificates, information or legal opinions as the Administrative Agent in writing not less than five (5) Business Days or any Lender shall have reasonably requested prior to the Closing Date. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.)
Conditions to Effectiveness. The obligations amendment and restatement of the Lenders to make Loans hereunder Existing Credit Agreement as provided herein and the other amendments contained in this Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees and other amounts due and payable on or prior to the Closing Fifth Restatement Date, including reimbursement or payment of all reasonable out-of-pocket expenses of the Administrative Agent and SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. as a Lead Arranger (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. as a Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of the Borrower, the Administrative Agent and each party Lender hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf electronic mail transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Subsidiary Guarantee Agreement, in form and substance reasonably satisfactory to the Administrative Agent three Business Days prior to the Closing DateAgent, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest duly executed and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” delivered by each Domestic Subsidiary of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementBorrower, excluding those Domestic Subsidiaries set forth on Schedule 3.1(b);
(iii) the Assignment and Security Agreement, duly executed and delivery by the Borrower and each Subsidiary Loan Party, in form and substance reasonably satisfactory to the Administrative Agent, together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Assignment and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Fifth Restatement Date, (C) a Perfection Certificate, duly completed and executed by the Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, if applicable and requested by the Administrative Agent;
(iv) the Pledge Agreement, duly executed and delivery by the Borrower and certain of its Domestic Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent, together with (A) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) and (B) stock or membership interest powers or other appropriate instruments of transfer executed in blank;
(v) a certificate of the Secretary or Assistant Secretary an authorized officer of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation or other organizational documents of the BorrowerLoan Parties, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of incorporation or organization of the Borrowereach Loan Party;
(vvii) a favorable written opinion of inside or outside Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel to the BorrowerLoan Parties, and such other written opinions as may be reasonably requested by the Administrative Agent, addressed to the Administrative Agent and each for the benefit of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Fifth Restatement Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects subsections (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in of Section 3.2;
(ix) the business, condition (consolidated audited financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects statements of the Borrower and its subsidiaries taken as a wholefor the fiscal years ended December 31, 2009, December 31, 2010 and December 31, 2011, including balance sheets, income statements and cash flow statements prepared by Ernst & Young, LLP in conformity with GAAP, and the consolidated financial statements of the Borrower and its subsidiaries for the fiscal quarter ending March 31, 2012, and financial projections in reasonable detail prepared on an annual basis for the Fiscal Years 2012 through 2017;
(viix) if a Borrowing will be made on certificates of insurance, in form and detail reasonably acceptable to the Closing DateAdministrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be;
(xi) a duly executed Notice of Borrowing and for any initial Revolving Borrowing;
(xii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiixiii) [Reserved.]a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of March 31, 2012, calculated on a pro forma basis as if the Term Loans and any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations);
(ixxiv) certified copies of (A) all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any contractual obligation of any Loan Party in connection with the quarterly financial statements execution, delivery, performance, validity and enforceability of the Borrower Loan Documents or any of the transactions contemplated thereby, and its Subsidiaries on such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(xv) with respect to the headquarters location, a consolidated basis for copy of the fiscal quarter ending on December 31underlying lease, 2020 as applicable, and (B) a Collateral Access Agreement from the audited consolidated financial statements for landlord of such leased property, which Collateral Access Agreement shall be reasonably satisfactory in form and substance to the Administrative Agent; provided, that such Collateral Access Agreement shall not be required if the Borrower and is unable to deliver such Collateral Access Agreement after using its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior commercially reasonable efforts to the date hereof)do so; and
(xxvi) such a CUSIP number for the Commitments. Without limiting the generality of the provisions of this Section 3.1, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that executes this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other documents, certificates matter required thereunder to be consented to or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably approved by or acceptable or satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)proposed Fifth Restatement Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Healthways, Inc), Revolving Credit and Term Loan Agreement (Healthways, Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy facsimile or .pdf form of electronic attachment (e.g., “.pdf” or “.tif”) transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) a duly executed Guarantee Agreement by Holdings and the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, Domestic Subsidiaries identified as Guarantors on Schedule 4.14 and (B) all amounts outstanding under a duly executed Borrower Guarantee Agreement (with respect to the Existing Credit Agreements have been paid (including, without limitation, principal, interest Hedging Obligations and fees), or will be repaid substantially concurrently with Treasury Management Obligations of Holdings and the closing of this Agreement, and (C) the “commitments” Restricted Subsidiaries of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementBorrower);
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party, substantially in the form of attached hereto as Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws or operating agreement, as applicable, and of the resolutions of its boards board of directorsdirectors (or equivalent governing body), authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party;
(v) a favorable written opinion of inside or outside King & Spalding LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate certificate, dated the Effective Date substantially in the form of attached hereto as Exhibit 3.1(b)(vi), dated the Closing Date 3.1(b)(vii) and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of Responsible Officer confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects Sections 3.3(a), (b) and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwisec), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing DateForm 10 (including the information statement and other exhibits contemplated thereby, a duly executed Notice of Borrowing in each case, in the form and a duly executed funds disbursement agreement, together with a report setting forth to the sources and uses of extent so filed) in the proceeds hereof;
form most recently filed (viiiwhether or not publicly) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the U.S. Securities and Exchange Commission prior to the date hereof); andEffective Date;
(xviii) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower Loan Parties that the Administrative Agent or such Lender reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).Act; and
(dix) At least five (5) days such other documents, certificates, information or legal opinions as the Administrative Agent or the Lenders may reasonably request, all in form and substance satisfactory to the Administrative Agent and the Lenders. For purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required 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 Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerproposed Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make the initial Loans and the obligation of the Issuing Bank to issue any initial Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArrangers (including the Fee Letter).
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Lenders:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed Notes payable to any Lender requesting a Note, if so requested;
(Aiii) the Borrower has delivered notice of its termination of commitments under Guaranty Agreement duly executed by each Subsidiary required to execute the Guaranty Agreement in connection with the Existing Credit Agreement or otherwise required pursuant to Section 5.10;
(iv) the Pledge and Security Agreement duly executed by each of the Loan Parties and the Intellectual Property Security Agreements duly executed by the applicable Loan Parties having rights in intellectual property subject to the Administrative Agent three Business Days prior to the Closing Date, such agreements;
(Bv) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees)an amendment to, or will be repaid substantially concurrently with an amendment and restatement of, the closing of this Agreement, and Prudential Senior Secured Note Agreement duly executed by each party thereto;
(Cvi) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Intercreditor Agreement;
(iiivii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(vii), (a) attaching and certifying copies of (w) its bylaws bylaws, partnership agreement or limited liability company agreement, or comparable organizational documents, as applicable, and of the (x) resolutions of its boards board of directors, board of members or general partner, as applicable, authorizing the execution, delivery and performance of the Credit Loan Documents and certifying the nameto which it is a party, title and true signature of each officer of the Borrower executing the Credit Documents;
(ivy) certified copies of the its articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, together with certificates or other registered organizational documents, as applicable, and (z) evidence of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign entity and (b) certifying the Borrowername, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party;
(vviii) a certificate of the Chief Financial Officer of the Borrower that, after giving effect to the Credit Extensions made on the Closing Date, neither the Borrower nor its Subsidiaries will be “insolvent,” within the meaning of such term as defined in § 101 of Title 11 of the United States Code, or be unable to pay its debts generally as such debts become due, or have an unreasonably small capital to engage in any business or transaction, whether current or contemplated;
(ix) a favorable written opinion of inside or outside (x) Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLC, counsel to the BorrowerLoan Parties, and (y) Polsinelli ▇▇▇▇▇▇▇▇ PC, special Kansas counsel to Midland Credit Management, Inc., each addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vix) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(x), dated the Closing Date and signed by a Financial Responsible Officer:
(a) certifying that, certifying that after giving effect to the funding of any initial Loan or initial issuance of a Letter of Credit (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viib) if certifying that no litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is pending against or, to the knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries that (y) purports to enjoin or restrain any Lender from making a Borrowing will Credit Extension hereunder or (z) could reasonably be expected to have a Material Adverse Effect;
(c) attaching certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made on or obtained under any Requirement of Law, or by any contractual obligation of each Loan Party, in connection with the Closing Dateexecution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding this Agreement or any transaction being financed with the proceeds hereof shall be ongoing; and
(d) attaching certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all other material agreements, documents and instruments to which any Loan Party or any of its assets are bound.
(xi) a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofBorrowing;
(viiixii) [Reserved.]the results of a Lien search (including a search as to judgments, pending litigation, tax and intellectual property matters), in form and substance reasonably satisfactory to the Administrative Agent, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Permitted Liens);
(ixxiii) evidence reasonably satisfactory to the Administrative Agent that at least sixty percent (60%) of all cash collections and other Receivables acquired by any Loan Party have, prior to the Closing Date, been deposited in collection accounts maintained with one or more of the Lenders;
(xiv) (a) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the three fiscal years most recently ended for which financial statements are available and interim unaudited financial statements for each quarterly period ended since the last audited financial statements for which financial statements are available and (b) projections prepared by management of the Borrower of balance sheets and income statements of the Borrower and its Subsidiaries, which will be quarterly for the first year ending September 30after the Closing Date, 2020 and balance sheets, income statements and cash flow statements of the Borrower and its Subsidiaries, annually thereafter for the term of this Agreement;
(it being agreed that this clause (ixxv) is satisfied by a duly completed and executed Compliance Certificate of the Borrower’s filings Borrower including pro forma calculations establishing compliance with the Securities financial covenants set forth in ARTICLE VI hereof as of the most recently completed fiscal quarter of the Borrower for which financial statements are available;
(xvi) all information the Administrative Agent and Exchange Commission prior each Lender may request with respect to the date hereofBorrower and its Subsidiaries in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and any other “know your customer” or similar laws or regulations; and
(xxvii) such other documentscertificates of insurance issued on behalf of insurers of the Loan Parties, certificates or information describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Loan Parties, naming the Collateral Agent as the Joint Lead Arrangers may reasonably request, all in form additional insured on liability policies and substance reasonably satisfactory to the Joint Lead Arrangerslender loss payee endorsements for property and casualty policies.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative The Collateral Agent shall have receivedreceived (i) the certificates, not later than two (2) calendar days prior if any, evidencing the capital stock or other equity interests pledged pursuant to the Closing DatePledge and Security Agreement, all documentation together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, subject to Section 5.12 and other information with respect (ii) each instrument pledged to the Borrower that Collateral Agent pursuant to the Administrative Agent Pledge and Security Agreement endorsed in blank (or accompanied by an executed transfer form in blank reasonably believes is required satisfactory to the Collateral Agent) by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)pledgor thereof.
(d) At least five Each document (5including, without limitation, any Uniform Commercial Code financing statement) days required by the Collateral Documents or under law or reasonably requested by the Collateral Agent to be executed, filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to the Closing Dateany other Person (other than Permitted Liens), to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationshall have been duly executed and delivered and/or be in proper form for filing, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerregistration or recordation.
Appears in 2 contracts
Sources: Credit Agreement (Encore Capital Group Inc), Amended and Restated Credit Agreement (Encore Capital Group Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Banks to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, all fees payable pursuant to the Fee Letter and reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, Truist Securities, Inc. and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation (subject to Section 5.17), certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of such Loan Party (and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation solely to the Borrowerextent that the failure to be so qualified as a foreign corporation in such other jurisdiction could result in a Material Adverse Effect);
(viv) a favorable written opinion of inside or outside (A) ▇▇▇ ▇▇▇ ▇▇▇ Law Offices, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Banks and the Lenders) and (B) ▇▇▇▇▇ ▇▇▇▇ LLP, addressed to the Administrative Agent, each Issuing Bank and each of the Lenders, and covering certain matters relating to the Investment Company Act of 1940;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreementfor the initial Revolving Borrowing, together with a report setting forth the sources and uses of the proceeds hereofthereof;
(vii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents and (to the extent applicable) APC 2019 Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(viii) [Reserved.]copies of the Historical Financial Statements;
(ix) copies of (A) the quarterly financial statements projections of the Borrower and its Subsidiaries (to be made on a consolidated pro forma basis after giving effect to the consummation of the Related Transactions) for the fiscal quarter Fiscal Year ending on December 31, 2020 2022 and for each Fiscal Year ending thereafter through the Fiscal Year ending December 31, 2025;
(x) [reserved];
(xi) a certificate, dated the Closing Date and signed by the chief financial officer of each Loan Party, confirming that each Loan Party is Solvent before and after giving effect to the funding of the initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(xii) (A) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties and their Subsidiaries and the Material Associated Practices, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Closing Date and (B) the audited consolidated financial statements for the Borrower a Perfection Certificate, duly completed and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied executed by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and;
(xxiii) such other documents, certificates or information as a counterpart of the Joint Lead Arrangers may reasonably request, all in form Reaffirmation Agreement and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to Master Amendment dated the Closing Date, duly executed by each Loan Party (the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined belowReaffirmation Agreement”).;
(dxiv) At at least five (5) days prior to the Closing Datedate of this Agreement, to all documentation and other information required by bank regulatory authorities or reasonably requested by the extent Administrative Agent or any Lender under or in respect of applicable “know your customer” and anti-money laundering legal requirements including the Patriot Act and, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to Borrower;
(xv) certified copies of all Material Agreements (including, for the Borroweravoidance of doubt, the Associated Practice Documents); and
(xvi) subject to Section 5.17, certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be, together with a lender’s loss payable endorsement in form and substance satisfactory to the Administrative Agent. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 2 contracts
Sources: Credit Agreement (Apollo Medical Holdings, Inc.), Credit Agreement (Apollo Medical Holdings, Inc.)
Conditions to Effectiveness. The obligations This Agreement shall become effective as of the Lenders to make Loans hereunder shall not become effective until the date on which Closing Date upon satisfaction or waiver (in accordance with Section 10.2) of each of the following conditions is satisfied (or waived in accordance with Section 9.2).it being acknowledged and agreed that upon execution and delivery of this Agreement by the Administrative Agent, the Lenders party hereto on the Closing Date and the Issuing Bank, such conditions shall be deemed satisfied):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all reasonable and documented out-of-pocket expenses of the Administrative Agent, the Lead Arrangers and their Affiliates (including reasonable and documented fees, charges and disbursements of one primary counsel to the Administrative Agent, one local counsel in each applicable jurisdiction and any special regulatory counsel) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers, in each case, to the extent that a detailed invoice is delivered to the Borrower at least two (2) Business Days prior to the Closing Date.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of each Loan Party, or in the Borrower case of the Borrower, the Secretary or Assistant Secretary of the GP LLC or the REIT Guarantor, in the form of Exhibit 3.1(b)(iii3.1(b)(ii), (A) attaching and certifying copies of its bylaws (x) such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents (collectively, the “Charters”), certified as of a recent date by the Secretary of State of the jurisdiction of organization of such Loan Party, or certifying that Charters and of Governing Documents previously delivered to the Administrative Agent in connection with the Existing Credit Agreement on February 8, 2019 or December 16, 2022, as applicable, remain in full force and effect, and (y) such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable (collectively, the “Governing Documents”); and (B) attaching and certifying (x) the resolutions of its boards such Loan Party’s board of directors, managers, members, general partner or other equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party, (y) certificates of good standing or existence, as applicable, from the Secretary of State or other applicable governmental authority of the jurisdiction of incorporation or organization of such Loan Party, and certifying (z) a certificate of incumbency containing the name, title and true signature of each officer of such Loan Party (or, in the Borrower executing the Credit Documents;
(iv) certified copies of the articles or certificate of incorporation case of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization sole member of the Borrowergeneral partner of such Loan Party) executing the Loan Documents to which such Loan Party is a party;
(viii) a favorable written opinion opinions of inside or outside (A) O’Melveny & ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties; and (B) DLA Piper LLC, Maryland counsel to the Loan Parties, and (C) Albright, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Nevada counsel to the Loan Parties, each addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viiv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(iv), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the transactions contemplated hereby, (A) no Default or Event of Default existshas occurred and is continuing on the Closing Date, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects, unless such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), (C) since September 30, 20202024, there has been no change which has had or could reasonably be expected to have a Material Adverse Effect and (D) the condition set forth in clauses (b)(vi) and (b)(vii) below has been satisfied;
(v) all material consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Material Indebtedness of any Loan Party, in each case, as of the Closing Date, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby shall have been obtained and shall be in full force and effect and all applicable waiting periods shall have expired, and no material adverse change in investigation or inquiry by any governmental authority regarding the business, condition Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(vi) copies of financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of projections for the Borrower REIT Guarantor and its subsidiaries taken as Subsidiaries on a wholequarterly basis for the Fiscal Quarter ending March 31, 2025 and annually thereafter through December 31, 2029;
(vii) if a Borrowing will be made on the Closing Date, a duly completed and executed Notice Compliance Certificate, including calculations of Borrowing the financial covenants set forth in Article VI hereof as of September 30, 2024, calculated on a pro forma basis after giving effect to the transactions contemplated hereby as if the same had occurred as of the first day of the four (4) Fiscal Quarter period ending on September 30, 2024 (and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofin reasonable detail such calculations);
(viii) [Reserved.]a certificate, dated the Closing Date and signed by the chief financial officer of the REIT Guarantor a confirming that after giving effect to the execution and delivery of the Loan Documents and the consummation of the transactions contemplated hereby, the REIT Guarantor and its Subsidiaries, on a consolidated basis, are Solvent;
(ix) copies of (A) the quarterly financial statements UCC, tax and judgment lien search reports in all necessary jurisdictions of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Loan Parties, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied as requested by the Borrower’s filings Administrative Agent, indicating that there are no existing Liens with the Securities and Exchange Commission prior respect to the date hereof); andLoan Parties other than Permitted Encumbrances, other Liens permitted under Section 7.2 and Liens to be released on the Closing Date;
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
at least three (c3) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower and each other Loan Party that the Administrative Agent or any Lender reasonably believes determines is required by regulatory authorities under applicable “know-your-know your customer” ”, and anti-money laundering rules and regulations, including including, without limitation the Patriot Act Act, to the extent reasonably requested by the Administrative Agent at least ten (as defined below).
10) days before the Closing Date. At least three (d3) At days prior to the Closing Date, the Borrower shall deliver to each Lender who has requested at least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver Date a Beneficial Ownership Certification in relation to the Borrower. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.), Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Conditions to Effectiveness. The obligations effectiveness of this Agreement, as well as the obligation of the Lenders Banks to make the initial Loans hereunder and of the Agent to issue Letters of Credit hereunder shall not become effective until be subject to the satisfaction of the conditions precedent, in addition to the applicable conditions precedent set forth in Sections 6.2 and 6.3 below, that the Agent shall have received all of the following, in form and substance satisfactory to the Agent, each duly executed and certified or dated as of the date on which each of this Agreement or such other date as is satisfactory to the following conditions is satisfied (or waived in accordance with Section 9.2).Agent:
(a) The Administrative Agent Notes payable to each Bank executed by a duly authorized officer (or officers) of the Company (or Company and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing DateBorrowing Subsidiary, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangersif applicable).
(b) The Administrative Agent Pledge Agreement, together with delivery of any certificate evidencing the stock or Ownership Interest of Foreign Subsidiaries pledged thereby and executed assignments separate from certificate (stock powers) for such certificates.
(c) The Guaranties required hereunder, executed by a duly authorized officer of each Subsidiary required to be a Guarantor hereunder.
(d) A certificate or its counsel) shall have received certificates of the following:
Secretary or an Assistant Secretary of each Borrower and each Guarantor, attesting to and attaching (i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” copy of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate corporate resolution of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, Company authorizing the execution, delivery and performance of the Credit Documents Loan Documents, (ii) an incumbency certificate showing the names and certifying titles, and bearing the namesignatures of, title the officers of such Borrower or Guarantor authorized to execute the Loan Documents, and true signature of each officer (iii) a copy of the Organizational Documents of such Borrower executing the Credit Documents;or Guarantor with all amendments thereto.
(ive) A Certificate of Good Standing for the Company and each Guarantor certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from by the Secretary of State or equivalent body in the applicable jurisdiction of the jurisdictions of organization of the Borrower;incorporation.
(vf) a favorable written An opinion of inside or outside counsel to the BorrowerCompany, the Guarantors and any Borrowing Subsidiary, addressed to the Administrative Agent and each of the LendersBanks, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in substantially the form of Exhibit 3.1(b)(vi), dated F.
(g) The Agent shall have received pro forma financial statements and five-year projections giving effect to the Closing Date Finishing Group Acquisition that are satisfactory to the Agent and signed by the Banks.
(h) Evidence satisfactory to the Agent that after giving effect to the Finishing Group Acquisition the Company’s Cash Flow Leverage Ratio calculated on a Financial Officer, certifying that pro forma basis is less than 3.25 to 1.0.
(Ai) no Default or Event of Default exists, (B) all representations and warranties The Agent shall have received a copy of the Borrower set forth in Intercreditor Agreement executed and delivered by the Credit Documents are true Senior Noteholders.
(j) Payment of all fees and correct in all material respects expenses due and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects payable as of the Borrower and its subsidiaries taken as a whole;effectiveness of this Agreement under or in connection with the Fee Letters upon the effectiveness of this Agreement.
(viik) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses Amendment of the proceeds hereof;
Note Agreement dated as of March 11, 2011 by and among the Company and the Senior Noteholders party thereto to amend the definition of “Significant Acquisition” appearing therein to mean a Permitted Acquisition (viiias defined therein) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied involving payment by the Borrower’s filings with the Securities Company or a Subsidiary (each as defined therein) of a total purchase price equal to or exceeding $200,000,000 and Exchange Commission prior to otherwise conform to the date hereof); and
(x) such other documentsterms of this Agreement, certificates or information as the Joint Lead Arrangers may reasonably requestapplicable, all in form and substance reasonably satisfactory to the Joint Lead ArrangersAgent.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Omnibus Amendment (Graco Inc), Credit Agreement (Graco Inc)
Conditions to Effectiveness. The obligations of the Lenders Noteholders to make Loans purchase Notes hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers Noteholders shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Noteholders and their Affiliates (including reasonable fees, charges and disbursements of one firm of outside counsel for the Administrative Agent and one firm of outside counsel for the Required Noteholders, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) to the Administrative Agent) required to be reimbursed or paid by the Borrower Issuer hereunder, under any other Credit Note Document and under any agreement with the Administrative Agent. The Administrative Agent or shall have received a fully executed copy of the Joint Lead ArrangersAgent Fee Letter.
(b) The Administrative Agent (or its counsel) and the Noteholders (or their counsel) shall have received the following, each to be in form and substance satisfactory to the Required Noteholders:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Note Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Note Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Note Party executing the Credit DocumentsNote Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Note Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Note Party;
(viv) a favorable written opinion opinions of inside or outside ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Squire ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the BorrowerNote Parties, addressed to the Administrative Agent and each of the LendersNoteholders, and covering such matters relating to the BorrowerNote Parties, the Credit Note Documents and the transactions contemplated therein as the Required Noteholders shall reasonably request (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent or and the Required Lenders shall reasonably requestNoteholders);
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that immediately after giving effect to the purchase of the Notes, (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower each Note Party set forth in the Credit Note Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be true and correct in all respects), (C) since September 30, 2020the date of the financial statements of the Issuer described in Section 4.4, there shall have been no material adverse change in which has had or could reasonably be expected to have a Material Adverse Effect and (D) immediately after giving pro forma effect to the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects purchase of the Borrower Notes and its subsidiaries taken as a wholethe consummation of the Closing Date Transactions, the Surplus and Liquidity Amount is not less than $125,000,000;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreementIssuance shall have been delivered in accordance with Section 2.2, together with a report flow of funds setting forth the sources and uses of the proceeds hereof;
(viiivii) [Reserved.]copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Material Agreement of any Note Party, in connection with the execution, delivery, performance, validity and enforceability of the Note Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any use of the proceeds thereof shall be ongoing;
(ixviii) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 Historical Financial Statements and (B) financial projections on a monthly basis through the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Month ending September 30, 2020 (it being agreed that this clause 2022;
(ix) is satisfied a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof for the last 12 Fiscal Months ended September 30, 2019, calculated on a pro forma basis as if the Closing Date Transactions had occurred as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations);
(x) evidence that the issuance of the Closing Date Warrants shall have been or, substantially concurrently with the purchase of the Notes under this Agreement shall be, issued on terms and conditions reasonably acceptable to the Required Noteholders;
(xi) a certificate, dated the Closing Date and signed by a Responsible Officer of the Issuer, confirming that the Note Parties and their Subsidiaries, taken as a whole, are Solvent immediately after giving effect to the purchase of the Notes and the consummation of the Closing Date Transactions;
(xii) the Guaranty and Security Agreement, duly executed by the Borrower’s filings Issuer and each of the Subsidiary Note Parties, together with (A) UCC financing statements and other applicable documents under the Securities and Exchange Commission prior laws of all necessary jurisdictions with respect to the date hereofperfection of the Liens granted under the Guaranty and Security Agreement, as reasonably requested by the Required Noteholders in order to perfect such Liens, duly authorized by the Note Parties, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary jurisdictions and under all legal and trade names of the Note Parties, as reasonably requested by the Required Noteholders, indicating that there are no prior Liens on any of the Collateral other than Liens permitted under Section 7.2 and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Issuer, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements (if applicable), (E) subject to the Intercreditor Agreement and/or any applicable Market Intercreditor Agreement, original certificates evidencing all issued and outstanding shares of Capital Stock of all Note Parties that constitute “certificated securities” under the UCC and (F) subject to the Intercreditor Agreement and/or any applicable Market Intercreditor Agreement, stock or membership interest powers or other appropriate instruments of transfer executed in blank with respect to such “certificated securities”;
(xiii) copies of all Material Agreements listed on Schedule 3.1(b)(xiii);
(xiv) property and liability certificates of insurance, in form and detail acceptable to the Required Noteholders, describing the types and amounts of property and liability insurance maintained by any of the Note Parties, in each case naming the Administrative Agent as lender loss payee or additional insured, as the case may be;
(xv) a duly executed Collateral Assignment;
(xvi) a duly executed Intercreditor Agreement; and
(xxvii) delivery of such other documents, certificates certificates, information or information legal opinions as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days or any Noteholder shall have reasonably requested prior to the Closing Date. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Noteholder that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Noteholder unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Noteholder prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Note Purchase Agreement (Root, Inc.), Note Purchase Agreement (Root Stockholdings, Inc.)
Conditions to Effectiveness. The obligations effectiveness of the Lenders this Agreement is subject to make Loans hereunder shall not become effective until the date on which each satisfaction of the following conditions is satisfied (or waived in accordance with Section 9.2).precedent:
(a) The Administrative Agent Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to Administrative Agent:
(i) executed counterparts of this Agreement, Parent Guaranty, the Subsidiary Guaranty and the Joint Lead Arrangers shall have received all fees applicable Pledge Agreements;
(ii) Revolving Notes and other amounts due and payable Term Notes executed by Borrower in favor of each Lender who has requested a Note on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) date that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three is two Business Days prior to the Closing Date, (B) all amounts outstanding under Effective Date and the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementSwingline Note executed by Borrower;
(iii) a certificate such certificates of the Secretary resolutions or Assistant Secretary other action, incumbency certificates and/or other certificates of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature Responsible Officers of each officer Loan Party as Administrative Agent may 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 Borrower executing the Credit Documentsother Loan Documents to which such Loan Party is a party;
(iv) certified copies of the articles such documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or certificate of incorporation of the Borrowerformed, together with certificates of and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or existenceoperation of properties or the conduct of its business requires such qualification, as may be available from except to the Secretary of State of the jurisdictions of organization of the Borrowerextent that failure to do so would not have a Material Adverse Effect;
(v) a favorable written opinion of inside or outside legal counsel to the BorrowerLoan Parties and local counsel to the Loan Parties in the jurisdictions in which the Property Owners of the Initial Borrowing Base Properties are organized, in each case, addressed to the Administrative Agent and each of the LendersLender, and covering addressing such matters relating with respect to the Borrower, the Credit Documents and the transactions contemplated therein Loan Parties as the Administrative Agent or the Required Lenders shall may reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that Responsible Officer of each Loan Party either (A) no Default attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents stating that no such consents, licenses or approvals are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeso required;
(vii) if a Borrowing will certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 5.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Pro Forma Financial Statements that has had or could be made on reasonably expected to have, either individually or in the Closing Dateaggregate, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofMaterial Adverse Effect;
(viii) [Reserved.]a duly completed Borrowing Base Report and Compliance Certificate as of the Effective Date, signed by a Responsible Officer of Borrower;
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent with respect to any Initial Borrowing Base Property, the Property Information with respect to such Initial Borrowing Base Property (which Property Information may be made available through an electronic database);
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in writing not less than five effect;
(5xi) Business Days evidence that all indebtedness, liabilities or obligations owing by the Loan Parties under the Existing Revolving Credit Agreement shall have been paid in full and all guarantees in respect of, and Liens securing, such indebtedness, liabilities or other obligations have been released; and
(xii) such other certificates, documents, consents or opinions as Administrative Agent shall reasonably request as further described in the list of closing documents attached hereto as Exhibit F.
(b) Any fees required to be paid on or before the Effective Date shall have been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) to the extent invoiced at least two days prior to the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement or an Assignment and Assumption 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 Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)proposed Effective Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (American Realty Capital Properties, Inc.), Credit Agreement (American Realty Capital Trust III, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) if requested by any Lender, duly executed Revolving Credit Notes and Term A Notes payable to such Lender, and a duly executed Swingline Note payable to the Swingline Lender;
(iii) the duly executed Subsidiary Guaranty Agreement and Indemnity and Contribution Agreement;
(iv) copies of duly executed payoff letters or similar agreements, in form and substance satisfactory to Administrative Agent, executed by each of the Existing Lenders (other than SunTrust Bank) and the Existing Noteholders, together with (a) UCC-3 or other appropriate termination statements, in form and substance satisfactory to Administrative Agent, releasing all liens of the Existing Lenders and the Existing Noteholders upon any of the personal property of any Loan Party, or satisfactory authorizations to file terminations statements, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all Liens of the Existing Lenders and the Existing Noteholders upon any of the Real Estate, Trademarks, Copyrights and other intellectual property of any Loan Party, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence that the payoff of the Existing Lender Obligations and the Existing Noteholder Obligations;
(v) the duly executed Security Agreement, together with (A) UCC financing statements and other applicable documents under the laws of the jurisdictions with respect to the perfection of the Liens granted under the Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized or executed (as appropriate) by the Borrower has delivered notice and the Subsidiary Loan Parties, (B) copies of favorable UCC, tax, judgment and lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Borrower and the Subsidiary Loan Parties requested by the Lenders, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances, (C) a Perfection Certificate duly completed and executed by the Borrower with respect to the Borrower and its termination Subsidiaries prior to the giving effect to the Acquisition, (D) a Perfection Certificate duly completed and executed by Frontstep with respect to Frontstep and its Subsidiaries, (E) duly executed landlord waivers and/or warehouseman or bailee agreements as requested by the Administrative Agent and (F) a certified copy of commitments under all domestic material leases of Real Estate;
(vi) the Existing Credit Agreements duly executed Domestic Pledge Agreement, together with (A) original stock certificates evidencing the issued and outstanding shares of Capital Stock of the Loan Parties pledged to the Administrative Agent three Business Days prior to the Closing Datepursuant thereto, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), stock powers or will be repaid substantially concurrently other appropriate instruments of transfer executed in blank with the closing of this Agreementrespect to such stock certificates, and (C) executed originals of promissory notes evidencing all Indebtedness owed by the “commitments” Borrower or any of its Subsidiaries to any Loan Party, in form and substance satisfactory to the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementAdministrative Agent, endorsed in blank;
(iiivii) duly executed originals of Trademark Security Agreements and Copyright Security Agreements, each dated the Closing Date and signed by each Loan Party which owns Trademarks and Copyrights, as applicable, all in form and substance reasonably satisfactory to the Administrative Agent, together with all instruments, documents and agreements executed pursuant thereto;
(viii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company operating agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivix) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vx) a favorable written opinion of inside or outside opinions from counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vixi) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viixii) if a duly executed Notice of Borrowing;
(xiii) a duly executed funds disbursement agreement;
(xiv) a duly executed Borrowing will Base Certificate dated as of the Closing Date, which shall show that after giving effect to the Revolving Loans to be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofExcess Availability is at least $5,000,000;
(viiixv) [Reserved.]a certified copy of the Foothill Warrant and all other warrants issued by the Borrower or any of its Subsidiaries, in form and substance satisfactory to the Administrative Agent, with no put or redemption rights;
(ixxvi) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect, all applicable waiting periods shall have expired and no investigation or inquiry by any Governmental Authority regarding any Related Transaction shall be ongoing;
(xvii) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31, 2020 2002, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Year ending September 30, 2020 2002;
(it being agreed that this clause xviii) copies of (ixA) is satisfied the internally prepared quarterly financial statements of Frontstep and its Subsidiaries on a consolidated basis for the Fiscal Quarter ending on December 31, 2002, and (B) the audited consolidated financial statements for Frontstep and its subsidiaries for the Fiscal Year ending June 30, 2002;
(xix) a certificate, dated the Closing Date and signed by the Borrower’s filings chief financial officer of each Loan Party, confirming the solvency of each Loan Party before and after giving effect to all transactions contemplated by the Transaction Documents, together with (A) the Projections, (B) a Pro Forma Balance Sheet for Borrower as of September 30, 2002;
(xx) certificates of insurance issued on behalf of insurers of the Loan Parties, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Loan Parties, in compliance with the Securities requirements of Section 5.8, naming the Administrative Agent as additional insured, together with loss payable endorsements in favor of, and Exchange Commission prior to in form and substance satisfactory to, the date hereof)Administrative Agent; and
(xxxi) such other documentssatisfactory field audit of all Accounts, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead ArrangersAdministrative Agent and completed by auditors and appraisers selected by the Administrative Agent.
(c) To The Administrative Agent shall have received fully executed copies of the extent principal Acquisition Documents and any other Acquisition Documents requested by the Administrative Agent Agent, certified as true, correct and complete by an authorized officer of Borrower, together with evidence that (i) the aggregate amount paid in writing not cash, plus all Indebtedness (other than trade payables) assumed, in connection with the Acquisition is less than five or equal to $21,500,000, (5ii) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information certificate of merger with respect to merging Frontstep and the Borrower that Acquisition Sub has been filed with the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” Ohio Secretary of State, and anti-money laundering rules (iii) upon the funding of the Term A Loan and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationinitial Revolving Loan, the Borrower Acquisition shall deliver a Beneficial Ownership Certification immediately be consummated in relation to accordance with the Borrowerterms of the Acquisition Documents.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees payable to the Administrative Agent, any Lender or any Arranger on or prior to the Closing Date and, to the extent invoiced at least one (1) Business Day before the Closing Date (except as reasonably agreed by the Borrower), all other fees, expenses and other amounts due and payable under the Loan Documents on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arrangers and their respective Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any other agreement with the Administrative Agent or the Joint Lead Arrangersany Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), Holdings and each Loan Party attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower Holdings or such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of Holdings and each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of Holdings and such Loan Party;
(iv) a favorable written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to Holdings and the BorrowerLoan Parties;
(v) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the Transactions, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects respects, except to the extent such representation or warranty is already subject to a materiality qualifier, in which case such representation or warranty shall be true and correct in all respects, and (Cz) since September 30December 31, 20202023, there shall have been no material adverse change in the business, condition which has had or could reasonably be expected to have a Material Adverse Effect;
(financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholevi) [reserved];
(vii) if a Borrowing will be made on the Closing Date, solvency certificate from a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses Responsible Officer of the proceeds hereofBorrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit C‑2;
(viii) each Collateral Document set forth on Schedule 1.1B required to be executed on the Closing Date as indicated on such schedule, duly executed by Parent and each Loan Party thereto, as applicable, together with:
(A) [Reserved.reserved];
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on assets of Holdings, the Borrower and each Subsidiary Guarantor that is party to the Security Agreement, covering the Collateral described in the Security Agreement;
(C) [reserved]; and
(D) evidence that all other actions, recordings and filings required by the Collateral Documents as of the Closing Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (subject to Schedule 5.20 attached hereto) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower providing authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent shall be reasonably satisfactory to the Administrative Agent);
(ix) copies of (A) the quarterly financial statements of the Borrower a recent Lien and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may judgment search in each jurisdiction reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five with respect to Parent and the Loan Parties;
(5x) [reserved];
(xi) [reserved];
(xii) the Administrative Agent and the Collateral Agent shall have received at least three (3) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, Date all documentation and other information with respect to about the Borrower that and the Administrative Agent reasonably believes is Guarantors required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot USA PATRIOT Act that has been requested by the Administrative Agent in writing at least ten (as defined below).
(d10) At least five (5) days Business Days prior to the Closing Date, to the extent . If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership RegulationRegulation in relation to the Borrower, the Borrower shall deliver a Beneficial Ownership Certification in relation to any Lender that has requested such certification at least five (5) Business Days prior to the Closing Date;
(xiii) true, complete and correct copies (as certified by a Responsible Officer of the Borrower) of executed documents evidencing the Term Credit Agreement, in form and substance reasonably acceptable to the Administrative Agent; and
(xiv) a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Section 3.1(c) and (d).
(i) All conditions precedent to the availability of the Initial Term Loans shall have been satisfied or waived in accordance therewith and (ii) the Existing Term Credit Agreement shall have been refinanced with the proceeds of the Initial Term Loans.
(d) All fees and interest accrued under the Existing Credit Agreement prior to the effectiveness of this Agreement shall have been paid to the lenders and agents under the Existing Credit Agreement.
(e) All fees and expenses due to the Administrative Agent, the Collateral Agent, the Lead Arrangers and their respective Affiliates required to be paid on the Closing Date and (in the case of expenses) invoiced at least three (3) Business Days before the Closing Date (except as otherwise reasonably agreed by the Borrower) shall have been paid. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 2 contracts
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC), Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until on the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Thethe Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date (or as otherwise provided for in the Fee Letter) to the extent invoiced at least two Business Days prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Joint Lead Arrangers and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, hereunder or under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.Loan Document. ;
(b) The Thethe Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational document of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(viv) a favorable written opinion opinions of inside or outside (x) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the BorrowerLoan Parties, (y) ▇▇▇▇▇▇▇▇, Leach, Herlong, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., Alabama counsel to the Loan Parties, and (z) counsel in each state in which any Mortgaged Property for which an amendment will not be executed pursuant to clause (xii) below is located, in each case addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, Lenders and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying certifying, among other things, that after giving effect to the funding of the initial Borrowing (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects) except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct on and as of such earlier date and (Cz) since September 30December 31, 20202012, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for the initial Borrowing;
(vii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]copies of all consents, approvals, authorizations, registrations, filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ix) copies a certificate, dated the Closing Date and signed by a Responsible Officer, confirming that the MLP and its Subsidiaries, on a consolidated basis, are Solvent both immediately before and immediately after giving effect to the funding of the initial Borrowing and the consummation of the transactions contemplated by the Loan Documents to occur on the Closing Date;
(x) the Guaranty and Security Agreement, duly executed by the Borrower and each of the Guarantors, together with (A) UCC financing statements and other applicable documents under the quarterly financial laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by such Loan Parties, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of such Loan Parties, indicating that there are no prior Liens on any of the Collateral other than Liens permitted by Section 7.2 and Liens released on the Original Closing Date and (C) a perfection certificate, duly completed and executed by the Borrower;
(xi) the Master Reaffirmation Agreement, duly executed by the Borrower and each of the Guarantors;
(xii) if requested by the Administrative Agent, amendments to the Mortgages covering all Mortgaged Property, duly executed by each applicable Loan Party, together with (A) endorsements to the title insurance policies with respect to such Mortgages in form and substance, and in such amounts, reasonably acceptable to the Administrative Agent; (B) evidence that counterparts of such amendments are in form for recording in the recording office of all applicable political subdivisions and places to the extent necessary or desirable, in the judgment of the Administrative Agent, to maintain a valid and enforceable first priority Lien (subject to Permitted Encumbrances) on such Real Estate in favor of the Administrative Agent for the benefit of the Secured Parties (or in favor of such other trustee as may be required or desired under local law) together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof and evidence of payment by the Borrower of all title policy premiums, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such amendments and issuance of such endorsements referred to above; and (C) an opinion of counsel in each state in which any Mortgaged Property for which an amendment will be executed pursuant to this clause (xii) is located in form and substance and from counsel reasonably satisfactory to the Administrative Agent;
(xiii) certificates of insurance describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be, together with lender’s loss payable endorsements;
(xiv) (A) (i) the audited consolidated and consolidating balance sheet of Arc Terminals LP and its Subsidiaries as of December 31, 2010, December 31, 2011 and December 31, 2012, and the related audited consolidated and consolidating statements of income, shareholders’ equity and cash flows for the Fiscal Year then ended, prepared by PricewaterhouseCoopers LLP, (ii) the audited consolidated and consolidating balance sheet of Arc Terminals Mobile Holdings LLC and its Subsidiaries as of December 31, 2010, December 31, 2011 and December 31, 2012, and the related audited consolidated and consolidating statements of income, shareholders’ equity and cash flows for the Fiscal Year then ended, prepared by PricewaterhouseCoopers LLP, and (iii) the audited balance sheet of Gulf LNG as of December 31, 2011 and December 31, 2012, and the related audited statements of income, shareholders’ equity and cash flows for the Fiscal Year then ended, prepared by PricewaterhouseCoopers LLP; (B) (i) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 2013 and June 30, 2013, and the related unaudited consolidated statements of income and cash flows for the Fiscal Quarter and year-to-date period then ended, certified by a Responsible Officer, and (ii) the unaudited balance sheet of Gulf LNG as of March 31, 2013 and June 30, 2013, and the related unaudited statements of income and cash flows for the Fiscal Quarter and year-to-date period then ended, as provided to the Borrower by Gulf LNG; and (C) financial projections of the MLP and its Restricted Subsidiaries on a consolidated quarterly basis for the fiscal quarter Fiscal Years ending on December 31, 2020 2013 and (B) the audited consolidated financial statements for the Borrower December 31, 2014 and its Subsidiaries for the fiscal year ending September 30annually thereafter through December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof)2018; and
(xxv) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is Loan Parties required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)laws.; and
(dc) At Thethe MLP IPO shall have occurred and resulted in net proceeds of at least five (5) days $75,000,000. Without limiting the generality of the provisions of this Section, 3.1, for purposes of determining compliance with the conditions specified in this Section, 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required hereunder to be consented to, 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (Arc Logistics Partners LP)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make initial Loans hereunder and the obligation of the Issuing Bank to issue any initial Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint BAS, as Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, the duly executed Notes payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this duly executed Subsidiary Guaranty Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation or formation of the Borrowersuch Loan Party;
(vvi) a favorable written opinion of inside or outside Hunton & ▇▇▇▇▇▇▇▇, LLP, counsel to the BorrowerLoan Parties, and Scarlett May, General Counsel of the Borrower (in the form of Exhibit 3.1(b)(vi)), addressed to the Administrative Agent and each of the CHAR1\935816v6 Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a) and (Cb) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofSection 3.2;
(viii) [Reserved.]duly executed Notices of Borrowing, if applicable;
(ix) certified copies of (A) all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the quarterly financial statements execution, delivery, performance, validity and enforceability of the Borrower Loan Documents or any of the transactions contemplated thereby, and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31such consents, 2020 approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(Bx) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior evidence satisfactory to the date hereof)Administrative Agent that the Existing Credit Agreement has been terminated and all interest, fees and principal accrued thereunder through the Closing Date will be paid in full from the initial Revolving Loans under this Agreement; and
(xxi) such all other documents, certificates or documents and information as the Joint Lead Arrangers may Administrative Agent reasonably requestrequests. Without limiting the generality of the provisions of Section 9.4, all for purposes of determining compliance with the conditions specified in form and substance reasonably 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 the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ruby Tuesday Inc), Revolving Credit Agreement (Ruby Tuesday Inc)
Conditions to Effectiveness. The obligations of the Lenders to make the initial Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative AgentAgent to the extent received on or prior to the Closing Date) required to be reimbursed or paid by the Borrower Borrowers hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArranger (including the Fee Letter).
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing duly executed Revolving Credit Agreements Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender;
(iii) the Subsidiary Guaranty Agreement duly executed by each Subsidiary Loan Party;
(iv) copies of duly executed payoff letters, in form and substance satisfactory to Administrative Agent, executed by the Existing Lender, together with (a) UCC-3 or other appropriate termination statements, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens of the Existing Lender upon any of the personal property of the Borrowers and their Subsidiaries, (b) cancellations and releases, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens of the Existing Lender upon any of the real property of the Borrowers and their Subsidiaries, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of Indebtedness owed to the Existing Lender;
(v) the Pledge Agreement and the Security Agreement, each duly executed by the Loan Parties party thereto;
(vi) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party substantially in the form of Exhibit 3.1(b)(iii3.1(b)(vi), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of (x) the jurisdictions jurisdiction of organization of such Loan Party and (y) each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign entity and where the Borrowerfailure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each other Lender of (x) Weil, Gotshal & ▇▇▇▇▇▇ LLP, as special counsel to the LendersLoan Parties, and (y) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, as special Georgia counsel to the Loan Parties, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viix) a certificate substantially in the form of Exhibit 3.1(b)(vi3.1(b)(ix), dated as of the Closing Date and signed by a Financial Responsible Officer, certifying that that, after giving effect to the funding of any initial Loan (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (except where such representations and warranties that are qualified by materiality, in which such case such representations and warranties shall be true and correct without qualification) and (Cz) since September 30, 2020the date of the financial statements of the Borrowers described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofBorrowing;
(viiixi) [Reserved.];
(ixa) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower Borrowers and its their Subsidiaries for the fiscal year Fiscal Year ending September 30December 31, 2020 2009; (it being agreed b) copies of the audited financial statements for the Unrestricted Subsidiary for the Fiscal Year ending December 31, 2009; and (c) the budget, income and expense projections of the Borrowers and their Subsidiaries prepared on a quarterly basis for the Fiscal Year ending December 31, 2010;
(xii) UCC, tax, judgment and bankruptcy lien search results with respect to each Loan Party from all appropriate jurisdictions and filing offices;
(xiii) certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all other Material Agreements to which any Loan Party or any Restricted Subsidiary or any of its assets are bound; notwithstanding the foregoing, the Borrowers shall also cause to be delivered all agreements, documents and instruments relating to the financing of the Unrestricted Subsidiary; provided, that the term “Material Indebtedness” as used in this clause (ixxiii) is satisfied by only, shall refer to Material Indebtedness that individually, and not in the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); andaggregate, exceeds $5,000,000;
(xxiv) such other documentsA Trademark Security Agreement executed by Fortegra and LOTSolutions, certificates or information as the Joint Lead Arrangers may reasonably requestInc., all in form and substance reasonably satisfactory to the Joint Lead ArrangersAdministrative Agent;
(xv) the Borrowers shall use their commercially reasonable efforts to deliver to the Administrative Agent either (x) a leasehold mortgage on behalf of the Lenders on the Florida Headquarters, which shall be acknowledged by the owner of such headquarters building, and, if reasonably requested by the Administrative Agent, a local counsel opinion, or (y) a landlord waiver and agreement with respect to the Florida Headquarters, related to, among other things, the Collateral located at the Florida Headquarters and the Lender’s access rights to such Collateral;
(xvi) certificates of insurance issued on behalf of insurers of the Borrowers and all other Loan Parties, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Borrowers and all other Loan Parties, naming the Administrative Agent as additional insured on liability policies and lender loss payee endorsements for property and casualty policies. Without limiting the generality of the provisions of this Section 3.1, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the The Administrative Agent shall have receivedreceived (i) the certificates, not later than two (2) calendar days prior if any, representing the shares of Capital Stock pledged pursuant to the Closing DatePledge Agreement and the Security Agreement, all documentation together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and other information with respect (ii) each promissory note pledged to the Borrower that the Administrative Agent pursuant to the Security Agreement endorsed in blank (or accompanied by an executed transfer form in blank reasonably believes is required satisfactory to the Administrative Agent) by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)pledgor thereof.
(d) At least five All consents, approvals and authorizations required to be obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding this Agreement or any transaction being financed with the proceeds hereof shall be ongoing; certified copies of all such consents, approvals and authorizations, if reasonably requested by the Administrative Agent, shall have been delivered to the Administrative Agent.
(5e) days All actions necessary to establish to the Administrative Agent’s satisfaction that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens) shall have been taken; provided, that the Borrowers will not be required to perfect a Lien in Collateral to the extent that the burden or cost of perfecting such a Lien would outweigh the benefit of the security afforded thereby as determined by the Borrowers and the Administrative Agent and provided, further, that with respect to any Collateral the Lien in which may not be perfected by filing of a UCC financing statement, if the perfection of the security interest in such Collateral may not be accomplished prior to the Closing Date after use of commercially reasonable efforts to do so, then delivery of documents and instruments for perfection of such security interest shall not constitute a condition precedent under Section 3.1 so long as the Borrowers agree to deliver or cause to be delivered such documents and instruments, and take or cause to be taken such other actions as may be required by the Administrative Agent to perfect such security interests, and the Borrowers further agree to take or cause to be taken any other actions set forth on Schedule 3.1, within the time frames set forth on Schedule 3.1, and the failure to deliver such documents or instruments or to take or cause to be taken such other actions within such time frame shall be an immediate and automatic Event of Default.
(f) The Indebtedness under the Subordinated Debenture Purchase Agreement shall have been either (i) paid in full with the proceeds of Indebtedness permitted by this Agreement (other than the proceeds of Loans); provided that the maturity of such Indebtedness shall not be earlier than 180 days after the third anniversary of the Closing Date, or (ii) the maturity date of such Indebtedness shall have been otherwise extended to no earlier than 180 days after the extent third anniversary of the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerClosing Date.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Fortegra Financial Corp), Revolving Credit Agreement (Fortegra Financial Corp)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender requesting a note;
(iii) the Subsidiary Guaranty Agreement duly executed by each Subsidiary Loan Party;
(iv) the Security Agreement duly executed by the Borrower and each Subsidiary Loan Party;
(v) a certificate of the Secretary or Assistant Secretary of each Loan Party in form and substance acceptable to the Borrower in the form of Exhibit 3.1(b)(iii)Administrative Agent, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of such Loan Party and such other jurisdictions where such Loan Party qualified to do business as a foreign corporation as may be required by the BorrowerAdministrative Agent;
(vvii) a Reserved;
(viii) favorable written opinion opinions of inside or outside ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and of local counsel to the Loan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viix) a certificate certificate, in form and substance acceptable to the form of Exhibit 3.1(b)(vi)Administrative Agent, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(xi) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofof the Loans to be disbursed on the Closing Date;
(viiixii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Credit Facility or any transaction being financed with the proceeds thereof shall be ongoing;
(ixxiii) Reserved;
(xiv) a Perfection Certificate (as defined in the Security Agreement) with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, and in the case of the Perfection Certificate, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens indicated in any such financing statement (or similar document) would be permitted by Section 7.2 or have been or will be contemporaneously released or terminated;
(xv) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31June 30, 2020 2007, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Years ending September March 31, 2005, March 31, 2006 and March 31, 2007;
(xvi) a duly completed and executed Compliance Certificate of the including pro forma calculations of the financial covenants set forth in Article 6 hereof as of June 30, 2020 2007;
(it being agreed that this clause (ixxvii) is satisfied by certified copies of all agreements, indentures or notes governing the Borrower’s filings with the Securities terms of any Material Indebtedness and Exchange Commission prior all other material agreements, documents and instruments to the date hereof)which any Loan Party or any of its assets are bound; and
(xxviii) such other documentsa copy of, certificates or information a certificate as to coverage under, the Joint Lead Arrangers may reasonably requestinsurance policies required by the applicable provisions of the Security Documents, all each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Administrative Agent as additional insured, in form and substance reasonably satisfactory to the Joint Lead ArrangersAdministrative Agent.
(c) To The Administrative Agent shall have received (i) the extent certificates representing the shares of Capital Stock pledged 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 and (ii) each promissory note pledged to the Administrative Agent pursuant to Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank satisfactory to the Administrative Agent) by the pledgor thereof.
(d) Each document (including, without limitation, any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in writing not less than five (5) Business Days prior order to the Closing Date, create in favor of the Administrative Agent shall have receivedAgent, not later for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required Liens expressly permitted by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulationsSection 7.2), including without limitation the Patriot Act (as defined below)shall be in proper form for filing, registration or recordation.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2 or otherwise permitted to be satisfied after the Closing Date pursuant to Section 5.23):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all reasonable and documented out-of-pocket expenses of the Administrative Agent, the Lead Arrangers and their Affiliates (including reasonable and documented fees, charges and disbursements of one primary counsel to the Administrative Agent, one local counsel in each applicable jurisdiction and any special regulatory counsel) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers, in each case, to the extent that a detailed invoice is delivered to the Borrower at least two (2) Business Days prior to the Closing Date.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws and (A) such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, certified as of a recent date by the Secretary of State of the jurisdiction of organization of such Loan Party; (B) such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable; (C) the resolutions of its boards such Loan Party’s board of directors, managers, members, general partner or other equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party, (D) certificates of good standing or existence, as applicable, from the Secretary of State of the jurisdiction of incorporation or organization of such Loan Party and certifying each other jurisdiction where such Loan Party which owns a Borrowing Base Asset is required to be qualified to do business as a foreign company, in each case as of a recent date, and (E) a certificate of incumbency containing the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which such Loan Party is a party;
(iviii) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion opinions of inside or outside (A) ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties; and (B) DLA Piper LLP, a Maryland counsel to the Loan Parties, and (C) Albright, Stoddard, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Nevada counsel to the Loan Parties, each addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viiv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(iv), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the transactions contemplated hereby, (A) no Default or Event of Default existshas occurred and is continuing on the Closing Date, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), (C) since September 30March 31, 20202015, there shall have has been no material adverse change which has had or could reasonably be expected to have a Material Adverse Effect and (D) the condition set forth in the business, condition clauses (financial or otherwise), operations, liabilities b)(vi) and (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeb)(vii) below has been satisfied;
(viiv) if a Borrowing will all material consents, approvals, authorizations, registrations and filings and orders required to be made on or obtained under any Requirement of Law, or by any Material Indebtedness of any Loan Party, in each case, as of the Closing Date, a duly executed Notice of Borrowing in connection with the execution, delivery, performance, validity and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses enforceability of the Loan Documents or any of the transactions contemplated thereby shall have been obtained and shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds hereofthereof shall be ongoing;
(viii) [Reserved.];
(ixvi) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited pro forma consolidated financial statements for the Borrower REIT Guarantor and its Subsidiaries for the fiscal year ending September 30ended December 31, 2020 (it being agreed that this clause (ix) is satisfied by 2014, including in each case the Borrower’s filings with the Securities related statements of income, shareholders’ equity and Exchange Commission prior to the date hereof); and
(x) such other documentscash flows, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.; and (B) financial projections on a quarterly basis for the Fiscal Year ending December 31, 2015 and annually thereafter through December 31, 2018;
(cvii) To a duly completed and executed Compliance Certificate, including calculations of the extent financial covenants set forth in Article VI hereof as of March 31, 2015, calculated on a pro forma basis after giving effect to the transactions contemplated hereby as if the same had occurred as of the first day of the four (4) Fiscal Quarter period ending on March 31, 2015 (and setting forth in reasonable detail such calculations);
(viii) a certificate, dated the Closing Date and signed by the chief financial officer of the REIT Guarantor and the Borrower confirming that after giving effect to the execution and delivery of the Loan Documents and the consummation of the transactions contemplated hereby, each of (A) the REIT Guarantor, (B) the Borrower and (C) the Loan Parties and their Subsidiaries, on a consolidated basis, are Solvent;
(ix) copies of UCC, tax and judgment lien search reports in all necessary jurisdictions of the Loan Parties, as requested by the Administrative Agent in writing not less Agent, indicating that there are no existing Liens with respect to the Loan Parties other than five (5) Business Days prior Permitted Encumbrances, Liens set forth on Schedule 7.2 and Liens to be released on the Closing Date;
(x) copies of a duly executed payoff letter, in form and substance satisfactory to the Administrative Agent, executed by the administrative agent under the Existing Credit Agreement, together with (a) UCC-3 or other appropriate termination statements, mortgage discharges and terminations, in each case in form and substance satisfactory to the Administrative Agent, releasing all liens of the lenders under the Existing Credit Agreement upon any of the personal property of the Borrower and its Subsidiaries granted pursuant to the Existing Credit Agreement and related financing documents, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all liens of the lenders under the Existing Credit Agreement upon any of the Real Estate of the Borrower and its Subsidiaries granted pursuant to the Existing Credit Agreement and related financing documents, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent shall have receivedto evidence the payoff of Indebtedness owed to the lenders issued or incurred pursuant to the Existing Credit Agreement and related financing documents;
(xi) [Reserved];
(xii) each of the Borrowing Base Asset Deliverables with respect to each Real Property Asset listed on Part I of Schedule 4.18; and
(xiii) a Borrowing Base Certificate, not later than two dated as of the Closing Date and signed by a Responsible Officer of the Borrower or the REIT Guarantor, substantially in the form of Exhibit B; and
(2xiv) calendar at least three (3) days prior to the Closing Date, all documentation and other information with respect to the Borrower and each other Loan Party that the Administrative Agent or any Lender reasonably believes determines is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including including, without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing DateAct, to the extent reasonably requested by the Borrower qualifies as Administrative Agent at least ten (10) days before the Closing Date. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a “legal entity customer” under Lender unless the Beneficial Ownership Regulation, the Borrower Administrative Agent shall deliver a Beneficial Ownership Certification in relation have received notice from such Lender prior to the Borrowerproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.), Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Conditions to Effectiveness. The obligations obligation of the Lenders Lender to make Loans and/or issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative AgentLender) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersLender.
(b) The Administrative Agent Lender (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent Lender (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing a duly executed Revolving Credit Agreements Note payable to the Administrative Agent three Business Days prior to the Closing Date, Lender;
(Biii) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest a duly executed Subsidiary Guarantee Agreement and fees), or will be repaid substantially concurrently with the closing of this Agreement, Indemnity and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Contribution Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available existence from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the LendersLender, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders Lender shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30of Section 3.2;
(viii) duly executed Notice of Revolving Borrowing, 2020Letter of Credit Notices and Letter of Credit Documents, there if applicable;
(ix) a duly executed Closing Statement and Disbursement Agreement;
(x) certified copies of all consents, approvals, authorizations, registrations or filings, if any, required to be made or obtained by each Loan Party in connection with the Loans; and
(xi) all other documents deemed reasonably necessary by the Lender.
(c) Upon the effectiveness of this Agreement, (i) the Lender shall have been no material adverse change make an advance under the Revolving Loan in the businessprincipal amount of $__________, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects the proceeds of which will be used to repay certain revolving loans outstanding under the Original Credit Agreement advanced for the benefit of the Borrower and its subsidiaries taken as a whole;
Subsidiaries, and (viiii) if a Borrowing will be made the Letters of Credit issued and outstanding under the Original Credit Agreement and listed on Exhibit 3.1(c) hereto shall automatically, without further action on the Closing Datepart of Borrower, a duly executed Notice be deemed to constitute outstanding letters of Borrowing credit issued and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that outstanding under this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Agreement.
(d) At least five (5) days prior Nothing has come to the Closing Date, to attention of the extent Lender regarding (i) pending or threatened litigation involving the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, or any Subsidiary or (ii) compliance by the Borrower shall deliver and each Subsidiary with environmental, OSHA and other public health, safety or welfare laws and regulations, employee benefit plans or insurance coverages that would be reasonably likely to have a Beneficial Ownership Certification in relation to the BorrowerMaterial Adverse Effect.
Appears in 2 contracts
Sources: Credit Agreement (Patriot Transportation Holding, Inc.), Credit Agreement (New Patriot Transportation Holding, Inc.)
Conditions to Effectiveness. The amendment and restatement of the Existing Credit Agreement as provided herein, and the obligations of the Lenders (including the Swingline Lender) to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2). The Administrative Agent and the Borrower shall execute a notice confirming the satisfaction of such conditions and the occurrence of the Closing Date.
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as Arranger.
(b) The Administrative Agent shall have completed and be satisfied with all due diligence with respect to the Borrower and its Subsidiaries, including but not limited to review of the Investment Objectives, risk management procedures, accounting policies, systems integrity, compliance, management and organizational structure, and the loan and investment portfolio of the Borrower and its Subsidiaries;
(c) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed originals of each Control Agreement with respect to all Collateral Accounts, Clearing Accounts, deposit accounts, securities, securities entitlements, other financial assets held with any financial institution other than Administrative Agent or its affiliates (other than the Approved Brokerage Accounts);
(iii) the duly executed Security Agreement, together with (A) the Borrower has delivered notice of its termination of commitments UCC financing statements and other applicable documents under the Existing Credit Agreements laws of the jurisdictions with respect to the perfection of the Liens granted under the Security Agreement, as requested by the Administrative Agent three Business Days prior in order to the Closing Dateperfect such Liens, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all amounts outstanding necessary or appropriate jurisdictions and under all legal and trade names of the Existing Credit Agreements have been paid (includingBorrower and the Subsidiary Guarantors requested by the Lenders, without limitation, principal, interest and fees), or will be repaid substantially concurrently with indicating that there are no prior Liens on any of the closing of this AgreementCollateral other than Permitted Encumbrances, and (C) a Perfection Certificate duly completed and executed by the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementBorrower;
(iiiiv) [reserved];
(v) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(c)(v), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi3.1(c)(viii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viiix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing Borrowing;
(x) a duly executed Federal Reserve Form U-1, executed by the Borrower and the Administrative Agent on behalf of each Lender;
(xi) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiixii) [Reserved.]a duly completed and executed certificate of the type described in Section 5.1(c) including calculations of the financial covenants set forth in Article VI hereof as of February 28, 2010;
(ixxiii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(xiv) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Year ending September November 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and2009;
(xxv) such other documents, certificates or information a duly completed and executed Borrowing Base Certificate as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than of two (2) calendar days prior to the Closing Date;
(xvi) certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all documentation other material agreements, documents and other information with respect instruments to which any Loan Party is a party or by which any of its assets are bound;
(xvii) certificates of insurance, in form and detail acceptable to the Borrower that Administrative Agent, describing the types and amounts of insurance (property and liability) covering any of the tangible insurable Collateral maintained by the Loan Parties, in each case naming the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” as additional insured and anti-money laundering rules and regulationsloss payee, including without limitation the Patriot Act (as defined below).appropriate;
(dxviii) At least five (5) days the Administrative Agent shall have reviewed and be satisfied with the Borrower’s compliance with underwriting policies for the Fiscal Quarter ended November 30, 2009 and prior to the Closing DateDate and shall have completed a satisfactory review of third party valuation reports prepared on behalf of the Borrower for the Fiscal Quarter ended November 30, 2009; and
(xix) the Administrative Agent shall have reviewed and approved, in its reasonable discretion, the valuations for all Private MLP Common and Preferred Units. Without limiting the generality of the provisions of Section 3.1, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Credit 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 extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co), Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co)
Conditions to Effectiveness. The obligations of the Lenders to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower Borrowers hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersAgent.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed Revolving Credit and Term Notes payable to such Lenders;
(Aiii) the Subsidiary Guaranty Agreement duly executed by each Subsidiary Loan Party, such that, as of the Closing Date, the Loan Parties (i) include all Material Domestic Subsidiaries and (ii) meet the Aggregate Subsidiary Threshold;
(iv) the Equity Pledge Agreement, duly executed by each Borrower has delivered notice and each Subsidiary Loan Party, granting a Lien on (a) 100% of its termination the Capital Stock owned by the respective pledgor in such Domestic Subsidiaries and (b) 65% (in the aggregate) of commitments under the Existing Credit Agreements to Capital Stock owned by the Administrative Agent three Business Days prior to respective pledgor in such Foreign Subsidiaries, in each case necessary to, as of the Closing Date, (Bi) all amounts outstanding under include a pledge of 100% of the Existing Credit Agreements have been paid Capital Stock of each Material Domestic Subsidiary (including, without limitation, principal, interest other than the Capital Stock of any Domestic Subsidiary owned directly by a Foreign Subsidiary on the Closing Date) and fees), or will be repaid substantially concurrently with 65% of the closing Capital Stock of this Agreement, each first tier Material Foreign Subsidiary and (Cii) meet the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementAggregate Equity Pledge Threshold;
(iiiv) the Security Agreement, duly executed by each Borrower and each Subsidiary Loan Party, granting certain Liens;
(vi) each of the other applicable Loan Documents, in each case duly executed by the applicable Loan Parties;
(vii) a payoff letter, duly executed by each of Ableco and ▇▇▇▇▇ Fargo in form and substance reasonably satisfactory to the Administrative Agent;
(viii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(viii), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivix) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vx) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vixi) a certificate certificates in the form of Exhibit 3.1(b)(vi3.1(b)(xi), dated the Closing Date and signed by a Financial OfficerResponsible Officer of each Borrower, certifying that after giving effect to the funding of the Term Loan and any initial Revolving Loan, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrowers described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as would reasonably be expected to have a wholeMaterial Adverse Effect;
(viixii) if a duly executed Notice of Term Loan Borrowing will and Notice of Revolving Borrowing;
(xiii) a duly executed Funds Disbursement Letter;
(xiv) certified copies of all material consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(xv) a duly completed and executed Borrowing Base Certificate dated as of the Closing Date reflecting Excess Availability of not less than $5,000,000 as of the Closing Date (after giving effect to any Revolving Borrowings to be made on the Closing Date), measured pursuant to the Eligible Accounts Receivable of the Borrowers certified by Borrowers’ Agent in such Borrowing Base Certificate as existing as of December 31, 2009, and including such supporting information and calculations as the Administrative Agent deems to be satisfactory in its sole discretion;
(xvi) certificates, dated the Closing Date and signed by a Responsible Officer of each Borrower, confirming that (i) each Borrower and (ii) the Loan Parties on a consolidated basis, are, in each case, Solvent before and after giving effect to the funding of the initial Borrowings and the consummation of the transactions contemplated to occur on the Closing Date;
(xvii) copies of the agreements listed on Schedule 3.1(b)(xvii);
(xviii) certificates of insurance issued on behalf of insurers of the Borrowers and all Guarantors, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Borrowers and all Guarantors, naming the Administrative Agent as loss payee and additional insured;
(xix) satisfactory third party field audit of Borrowers;
(xx) searches of Uniform Commercial Code filings in the jurisdiction of the chief executive office and State of organization of each Borrower and each Guarantor and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral for the benefit of the Credit Providers, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Encumbrances;
(xxi) duly executed Notice authorized UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral for the benefit of Borrowing the Credit Providers;
(xxii) searches of ownership of, and a duly executed funds disbursement agreementLiens on, Intellectual Property of each Borrower and each Guarantor in the appropriate governmental offices;
(xxiii) all instruments, stock certificates and chattel paper in the possession of any Borrower or any Subsidiary, together with a report setting forth allonges, assignments or stock powers as may be necessary or appropriate to perfect the sources and uses Administrative Agent’s security interest in the Collateral for the benefit of the proceeds hereofCredit Providers;
(viiixxiv) [Reserved.]such duly executed consents as are necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral, including, without limitation, such Acknowledgment Agreements from lessors of real property, warehousemen and other third parties as the Administrative Agent may require;
(ixxxv) revised financial projections of Borrowers and their Subsidiaries, specifically including any contemplated Permitted Acquisitions that might be consummated prior to January 31, 2010;
(xxvi) reports detailing the quarterly revenue for the top three customers of Borrowers for the Fiscal Quarters 9/30/07 through 6/30/09;
(xxvii) completion by the Administrative Agent of diligence on the top three customers of the Borrowers;
(xxviii) financial and legal diligence and copies of any existing draft or final transaction documents relating to any Permitted Acquisition that might be consummated prior to January 31, 2010;
(Axxix) the quarterly financial statements unaudited consolidated balance sheet of the Borrower PRGX and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending as of September 30, 2020 (it being agreed that this clause (ix) is satisfied 2009, and the related unaudited consolidated statements of income and cash flows for the Fiscal Quarter and year-to-date period then ending, certified by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof)a Responsible Officer of Borrowers’ Agent; and
(xxxx) such balance sheets of each individual Loan Party and other documents, certificates or information as the Joint Lead Arrangers may diligence reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior order to complete its Solvency analysis of each Loan Party. Without limiting the Closing Dategenerality of the provisions of Section 3.1, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (PRGX Global, Inc.), Revolving Credit and Term Loan Agreement (PRGX Global, Inc.)
Conditions to Effectiveness. The obligations occurrence of the Lenders Closing Date and the effectiveness of this Agreement are subject to make Loans hereunder shall not become effective until the date on which each satisfaction of the following conditions is satisfied (or waived in accordance with Section 9.2).precedent:
(a) The Administrative Agent and Agent’s receipt of the Joint Lead Arrangers following, each of which shall have received all fees and other amounts due and payable on be originals or prior to telecopies (followed promptly by originals) unless otherwise 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, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges ) and disbursements of counsel each in form and substance satisfactory to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document Agent and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its legal counsel) shall have received the following:
(i) a counterpart executed counterparts of this Agreement signed Agreement, in the number requested by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreementits legal counsel;
(ii) evidence that (A) a Note executed by the Borrower has delivered notice in favor of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender requesting a Note;
(iii) a certificate such certificates of the Secretary resolutions or Assistant Secretary other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower in as the form of Exhibit 3.1(b)(iii)Administrative Agent may require evidencing the identity, attaching authority and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature capacity of each officer of Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower executing the Credit Documentsis a party;
(iv) certified copies of such documents and certifications as the articles Administrative Agent may reasonably require to evidence that the Borrower is duly organized or certificate of incorporation of formed, and that the BorrowerBorrower is validly existing, together with certificates of in good standing and qualified to engage in business in (A) the jurisdiction of its incorporation or existenceorganization and (B) each other jurisdiction where its ownership, as may lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be available from the Secretary of State of the jurisdictions of organization of the Borrowerexpected to have a Material Adverse Effect;
(v) a favorable written opinion of inside or outside Haynsworth ▇▇▇▇▇▇▇ ▇▇▇▇, P.A., counsel to the Borrower, addressed to the Administrative Agent and each Lender, covering enforceability of the Lenders, and covering such matters relating to the Borrower, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestsuch other matters to be agreed upon;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the form execution, delivery and performance by the Borrower and the validity against the Borrower of Exhibit 3.1(b)(vi)the Loan Documents to which it is a party, dated the Closing Date and certifying that such consents, licenses and approvals are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Financial Officer, Responsible Officer of the Borrower certifying that (A) no Default or Event of Default existsthat the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements through the Closing Date that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) the current Debt Ratings;
(viii) evidence that all obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, paid and fully satisfied and any and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of fees, charges and disbursements as shall constitute its reasonable estimate of fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower set forth contained in the Credit Documents Article V and in any other Loan Document, and those which are contained in any other document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects as of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(ce) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to No Default shall exist and be continuing as of the Closing Date.
(f) The Closing Date shall have occurred on or before October 29, 2010. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Sonoco Products Co), Credit Agreement (Sonoco Products Co)
Conditions to Effectiveness. The obligations amendment and restatement of the Lenders to make Loans hereunder Existing Credit Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Effective Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy facsimile or .pdf form of electronic attachment (e.g., “.pdf” or “.tif”) transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) a duly executed Subsidiary Guarantee Agreement by the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, Domestic Subsidiaries identified as Guarantors on Schedule 4.14 and (B) all amounts outstanding under a duly executed Borrower Guarantee Agreement (with respect to the Existing Credit Agreements have been paid (including, without limitation, principal, interest Hedging Obligations and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” Treasury Management Obligations of the lenders under Subsidiaries of the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementBorrower);
(iii) a duly executed copy of the Intercreditor Agreement in form and substance reasonably satisfactory to the Administrative Agent;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party, substantially in the form of attached hereto as Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws or operating agreement, as applicable, and of the resolutions of its boards board of directorsdirectors (or equivalent governing body), authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party;
(vvi) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate certificate, dated the Effective Date substantially in the form of attached hereto as Exhibit 3.1(b)(vi), dated the Closing Date 3.1(b)(vii) and signed by a Financial Responsible Officer, (A) confirming compliance with the conditions set forth in Sections 3.2(a), (b) and (c), and (B) certifying that (Ax) all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any applicable laws, or by any contractual obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Transaction Documents or any of the transactions contemplated thereby shall be in full force and effect and all applicable waiting periods shall have expired and (y) no Default known investigation or Event of Default exists, (B) all representations and warranties of inquiry by any Governmental Authority regarding the Borrower set forth in Commitments or any transaction being financed with the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there proceeds thereof shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholebe ongoing;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiix) [Reserved.]certified copies of amendments to the Note Agreements and any material documents related thereto, each in form and substance reasonably satisfactory to the Administrative Agent;
(ixxi) copies a solvency certificate, dated as of the Effective Date and signed by the chief financial officer of Borrower, confirming that the Borrower is Solvent, and the Borrower and its Subsidiaries on a consolidated basis, are Solvent before and after giving effect to the funding of the Term Loan A and any Revolving Loans and any other extensions of credit on the Effective Date and the consummation of the other transactions contemplated herein;
(xii) (A) the quarterly audited financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter period ending on December 31, 2020 2016 and (B) the audited consolidated financial statements projections for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than next five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two Fiscal Years;
(2xiii) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower Loan Parties that the Administrative Agent or such Lender reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).Act; and
(dxiv) At least five (5) days such other documents, certificates, information or legal opinions as the Administrative Agent or the Lenders may reasonably request, all in form and substance satisfactory to the Administrative Agent and the Lenders. For purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required 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 Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerproposed Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Aaron's Inc), Revolving Credit and Term Loan Agreement (Aaron's Inc)
Conditions to Effectiveness. The amendment and restatement of the Existing Credit Agreement as provided herein, and the obligations of the Lenders (including the Swingline Lender) to make Loans hereunder and the obligation of the Issuing Bank to issue any Letter of Credit hereunder, shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable to the Administrative Agent and the Lenders on or prior to the Closing Restatement Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Markets, a division of SunTrust Capital Markets, Inc., as Sole Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that a duly executed Note payable to each Lender requesting such Note;
(Aiii) the Borrower has delivered notice duly executed Guaranty Agreement and Contribution Agreement;
(iv) payment in full of its termination all Loans and all accrued interest, facility fees, letter of commitments credit fees, and other fees, expenses and amounts owing under the Existing Credit Agreements Agreement through the Restatement Date;
(v) evidence that satisfactory arrangements have been made for the cancellation, termination, and releases of the real estate collateral documents and related filings and registrations made pursuant to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under conditions and requirements of the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iiivi) certificates of insurance, all in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) covering the properties of the Borrower and its Subsidiaries;
(vii) a certificate of the Secretary or Assistant Secretary Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or other comparable governing documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivviii) certified copies of the articles or certificate of incorporation or other organizational documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation or formation of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vix) a the favorable written opinion opinions of inside or outside (i) Bass, ▇▇▇▇▇ & ▇▇▇▇, PLC, (ii) ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ and (iii) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLC, each as counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, the Issuing Bank, and each of the LendersLenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vix) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Restatement Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viixi) if a Borrowing will be made on certified copy of the Closing Date, Indenture and all modifications and amendments thereto;
(xii) a duly executed Notice or Notices of Borrowing and a duly executed funds disbursement agreementand/or Notice or Notices of Conversion/Continuation, together with a report setting forth the sources and uses of the proceeds hereofas applicable;
(viiixiii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(ixxiv) copies of (A) the quarterly consolidated financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 302004 and 2003 Fiscal Years, 2020 including balance sheets, income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP and such other financial information as the Administrative Agent may reasonably request;
(it being agreed xv) acknowledgments from those Persons that were “Lenders” under the Existing Credit Agreement but are not Lenders under this clause (ix) is satisfied by Agreement, confirming as of the Borrower’s filings with Restatement Date their receipt of payment in full of all amounts then owing to them under the Securities Existing Credit Agreement, the termination of their respective Commitments, and Exchange Commission prior their ceasing to continue as Lenders that will be parties to the date hereof)Agreement after the effective time of the restatement and amendment of the Existing Credit Agreement; and
(xxvi) such other documentsdocuments, certificates certificates, information or information legal opinions as the Joint Lead Arrangers Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory satisfactory to the Joint Lead ArrangersAdministrative Agent.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of outside counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, Borrowers hereunder or under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersLoan Document.
(b) The Administrative Agent (or its counsel) shall have received the following, each in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing a duly executed Revolving Credit Agreements Note payable to each Lender and a duly executed Swingline Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementSwingline Lender;
(iii) the Subsidiary Guaranty Agreement duly executed by all Material Subsidiaries that are Domestic Subsidiaries (other than Services and Checkfree Investment);
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside A▇▇▇▇▇ & Bird, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the audited financial statements of the Parent described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Revolving Borrowing, if applicable;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofif applicable;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such other documentsconsents, certificates approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or information as inquiry by any governmental authority regarding this Agreement or any transaction being financed with the Joint Lead Arrangers may reasonably requestproceeds hereof shall be ongoing;
(xi) a certificate, dated the Closing Date and signed by the chief financial officer of each Loan Party, confirming the solvency of each Loan Party before and after giving effect to all in form and substance reasonably transactions contemplated by the Loan Documents.
(xii) evidence satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to that all Liens securing obligations of any Loan Party outstanding under the Closing DateExisting Credit Agreement, the Administrative Agent shall ARC Transmission Agreement or any ACH Master Agreement have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)been released.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Banks to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.211.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses for which invoices have been presented and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Syndication Agent and their Affiliates (including reasonable documented fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower Borrowers hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as Joint Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission e-mail of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the each Borrower in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the such Borrower executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the organization or limited partnership, or other registered organizational documents of each Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the such Borrower;
(viv) a favorable customary written opinion of inside or outside ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerBorrowers, addressed to the Administrative Agent Agent, the Issuing Banks and each of the Lenders, and covering such matters relating to the BorrowerBorrowers, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of any initial Loans, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the each Borrower set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrowers described in Section 4.4, there shall have been no material adverse change in the business, condition which has had or would reasonably be expected to have a Material Adverse Effect;
(financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects vi) a duly executed Notice of the Borrower and its subsidiaries taken as a wholeBorrowing;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];certified copies of all consents, approvals, authorizations, registrations, filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments shall be ongoing, or a certificate, dated the Closing Date and signed by a Responsible Officer, certifying that no such consents, approvals, authorizations, registrations, filings or orders are required; and
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31duly executed payoff letters, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested Administrative Agent, executed by the Administrative Agent applicable administrative agent thereof; together with UCC-3 or other appropriate termination statements and releases, in writing not less than five (5) Business Days prior form and substance satisfactory to the Closing DateAdministrative Agent, releasing all liens of the Existing Lenders and their agents upon any of the personal property of the Borrowers and their Subsidiaries. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, or accepted or been 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, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Buckeye Partners, L.P.)
Conditions to Effectiveness. The obligations of the Lenders to make Term Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersBear, S▇▇▇▇▇▇ & Co. Inc., as a lead arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, a duly executed Term Note payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Datea duly executed Parent Guarantee Agreement, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Holdings Guarantee Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Subsidiary Guarantee Agreement;
(iiiiv) duly executed Security Documents, together with appropriate stock certificates;
(v) a duly executed amendment to the Existing Credit Agreement, which such amendment shall be in full force and effect on the Closing Date and otherwise in form and substance satisfactory to the Administrative Agent;
(vi) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws bylaws, partnership agreement or operating agreement (as the case may be) and of the resolutions of its boards of directorsdirectors or equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvii) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowereach and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vviii) a favorable written opinion of inside or outside executed legal opinions of: (x) Boult, Cummings, C▇▇▇▇▇▇ & B▇▇▇▇, PLC, Tennessee counsel to the BorrowerLoan Parties; (y) Akin Gump S▇▇▇▇▇▇ H▇▇▇▇ & F▇▇▇ LLP, New York counsel to the Loan Parties; and (z) J▇▇▇▇ ▇▇▇▇▇, Esq., general counsel of the Parent, addressed to the Administrative Agent and each of the Lenders, the Collateral Agent and covering such matters relating the administrative agent under the Existing Credit Agreement, in each case in form and substance satisfactory to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestAgent;
(viix) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (d) and (Ce) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholethis Section 3.1;
(viix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiixi) [Reserved.]certified copies of all consents, approvals, authorizations, registrations, or filings required to be made or obtained by each Loan Party in connection with the Loan Documents and any transaction being financed with the proceeds of the Term Loans as of the Closing Date;
(ixxii) copies if not already in the possession of (A) the quarterly Administrative Agent, the consolidated financial statements of the Borrower Parent for the fiscal years ended 2003, 2004 and its Subsidiaries on a 2005, including balance sheets, income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP, and the consolidated basis financial statements of the Parent for the fiscal quarter and six (6) month period ending June 30, 2006;
(xiii) copies of certificates of insurance issued on December 31, 2020 and (B) the audited consolidated financial statements for behalf of insurers of the Borrower and its Subsidiaries for all Guarantors, describing in reasonable detail the fiscal year ending September 30, 2020 types and amounts of insurance (it being agreed that this clause (ixproperty and liability) is satisfied maintained by the Borrower’s filings with Borrower and all Guarantors, naming the Securities and Exchange Commission prior to Collateral Agent as additional insured;
(xiv) such other financial information as reasonably required by the date hereof)Administrative Agent; and
(xxv) such other documents, certificates or information as the Joint Lead Arrangers Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead ArrangersAdministrative Agent or the Required Lenders.
(c) To Each document (including any Uniform Commercial Code financing statement) required by the extent Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in writing not less than five (5) Business Days prior order to create in favor of the Collateral Agent, for the benefit of the Lenders and the lenders party to the Closing DateExisting Credit Agreement, a perfected Lien on the Administrative Agent Collateral described therein, prior and superior in right to any other Person, shall have receivedbe in proper form for filing, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)registration or recordation.
(d) At least five No Default or Event of Default shall have occurred and be continuing.
(5e) days prior to All representations and warranties of each Loan Party set forth in the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower Loan Documents shall deliver a Beneficial Ownership Certification be true and correct in relation to the Borrowerall material respects.
Appears in 1 contract
Sources: Credit Agreement (United Surgical Partners International Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Agreement shall not become effective effective, the Existing Credit Agreement shall remain in full force and effect, Borrower shall not have any rights under this Agreement and Administrative Agent and Lenders shall not be obligated to take, fulfill or perform any action hereunder, until the date on which each of the following conditions is satisfied have been fulfilled to the satisfaction of Administrative Agent and Lenders (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, duly executed Revolving Credit Notes payable to such Lender and the Swingline Note payable to the Swingline Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this duly executed Subsidiary Guaranty Agreement, the Holdings Guaranty Agreement and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Indemnity and Contribution Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside Snell & Wilmer, L.L.P., counsel to the BorrowerLoan Parties, addressed to the Administrative ▇▇ ▇▇e A▇▇▇▇▇▇trative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiix) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixxi) copies of (A) the internally prepared quarterly financial statements of the Borrower Holdings and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Fiscal Quarter ended September 30, 2020 2005, and (B) the audited consolidated financial statements for the Borrower Holdings and its Subsidiaries for the fiscal year ending September 30Fiscal Years ended December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2002, December 31, 2003 and Exchange Commission prior to the date hereof)December 31, 2004; and
(xxii) such other documentscertificates of insurance issued on behalf of insurers of the Borrower and all guarantors, certificates or information as describing in reasonable detail the Joint Lead Arrangers may reasonably requesttypes and amounts of insurance (property and liability) maintained by the Borrower and all guarantors, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by naming the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)additional insured.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Swift Transportation Co Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees reasonable and documented fees, out-of-pocket expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all reasonable and documented out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their Affiliates (including without limitation, reasonable fees, charges and documented out-of-pocket fees and disbursements of one external counsel and to the extent reasonably necessary of a single local counsel to the Administrative AgentAgent in each appropriate jurisdiction (which may, if reasonably necessary, include a single special counsel acting in multiple jurisdictions) required to be reimbursed or paid by the Borrower Borrowers hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Sole Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization, formation or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation, except to the Borrowerextent that failure to do be qualified in such foreign jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the LendersLenders as of the Closing Date, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestin customary form;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding any initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrowers described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on requested by the Closing DateAdministrative Agent, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement;
(vii) certified copies of all consents, together approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with a report setting forth the sources execution, delivery, performance, validity and uses enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds hereofthereof shall be ongoing;
(viii) [Reserved.]a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of March 31, 2015, calculated on a pro forma basis as if any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations);
(ix) copies a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of each Loan Party (A) the quarterly financial statements or of the Borrower and its Subsidiaries managing member of such Loan Party), confirming that the Loan Parties, on a consolidated basis for the fiscal quarter ending on December 31basis, 2020 are Solvent before and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior after giving effect to the date hereof); andfunding of any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(x) such other documentsthe Guaranty Agreement duly executed by each Guarantor;
(xi) with respect to Indebtedness not permitted to be outstanding pursuant to Section 7.1 or Liens not permitted to be outstanding pursuant to Section 7.2, certificates or information as the Joint Lead Arrangers may reasonably requestcopies of duly executed payoff letters, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
Administrative Agent, executed by each of the existing lenders or the administrative agent thereof, together with (a) UCC‑3 or other appropriate termination statements, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens of the existing lenders upon any of the personal property of the Borrowers and their Subsidiaries, (b) cancellations and releases, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens of the existing lenders upon any of the real property of the Borrowers and their Subsidiaries, and (c) To the extent requested any other releases, terminations or other documents reasonably required by the Administrative Agent in writing not less than five (5) Business Days prior to evidence the payoff of Indebtedness owed to the Closing Dateexisting lenders;
(xii) regulatory net capital of each Broker/Dealer Subsidiary in an amount equal to at least 125% of the amount required by Rule 17a-11(b) (pursuant to which an “early warning” notice of capital related problems is required by the SEC) for such Broker/Dealer Subsidiary; and
(xiii) certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness (excluding any agreements governing any Permitted Funding Debt). Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, or accepted or been 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, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers Lenders shall have received the payment of all fees fees, expenses and other amounts earned, due and payable on or prior to the Closing Date, including including, without limitation, and to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent) outside counsel), in each case, required to be reimbursed or paid by the Borrower hereunder, hereunder or under any other Credit Loan Document (including, for the avoidance of doubt, the Fee Letters); provided that this clause (a) shall be deemed satisfied on the Closing Date by the delivery of a Notice of Borrowing on or prior to the Closing Date that authorizes the disbursement of the proceeds of the Term Loans on the Funding Date to pay such fees, expenses and under any agreement with the Administrative Agent or the Joint Lead Arrangersother amounts.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent and Required Lenders:
(i) a counterpart of this Agreement Agreement, signed by or on behalf of each party hereto hereto, or written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed signatures to, and true, correct and complete copies of, each other Loan Document (Aas applicable) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior related to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party, substantially in the form of Exhibit 3.1(b)(iii)) attached hereto, attaching and certifying copies of (x) its bylaws bylaws, limited liability company agreement, declaration of sole member or partnership agreement, as applicable, or equivalent thereof, (y) its articles or certificate of incorporation, certificate of formation, articles of organization or certificate of partnership, as applicable, or equivalent thereof and of (z) the resolutions of its boards Board of directorsDirectors, shareholders (if required) or comparable authorizations, authorizing the execution, delivery and performance of the Credit Documents Loan Document(s) to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Document(s) to which it is a party;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with (A) certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of each Loan Party and (B) with respect to RRC, a certificate of good standing from the BorrowerRegistrar of Companies and a letter of good standing from the Cayman Islands Monetary Authority, in each case, issued on the Closing Date or as reasonably close to the Closing Date as possible;
(v) a favorable written opinion opinions of inside or outside ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, as applicable, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or and the Required Lenders shall reasonably requestrequest (which opinions shall expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders);
(vi) a certificate certificate, substantially in the form of Exhibit 3.1(b)(vi)) attached hereto, dated as of the Closing Date Date, and signed by a Financial OfficerResponsible Officer of the Borrower, certifying that immediately after giving effect to consummation of the transactions contemplated to occur on the Closing Date, (A) no Default or Event of Default existsexists or shall result therefrom, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be true and correct in all respects), (C) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in which has had or would reasonably be expected to have a Material Adverse Effect and (D) the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects Liquidity of the Borrower and its subsidiaries taken as a wholethe other Loan Parties shall be no less than $200,000,000;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof[reserved];
(viii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Material Agreement of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated hereby or thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Term Loans shall be ongoing;
(ix) copies of [reserved];
(Ax) the quarterly financial statements [reserved];
(xi) [reserved];
(xii) [reserved];
(xiii) [reserved];
(xiv) [reserved];
(xv) a certificate, dated as of the Borrower Closing Date, and its Subsidiaries on signed by a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by Responsible Officer of the Borrower’s filings with , confirming that the Securities Loan Parties and Exchange Commission prior their Subsidiaries, taken as a whole, are Solvent, immediately after giving effect to the date hereof)consummation of the transactions contemplated to occur on the Closing Date;
(xvi) [reserved];
(xvii) [reserved]; and
(xxviii) delivery of such other documents, certificates certificates, information or information legal opinions as the Joint Lead Arrangers may Administrative Agent or any Lender shall have reasonably request, all in form and substance reasonably satisfactory requested prior to the Joint Lead ArrangersClosing Date.
(c) To the extent requested by the Administrative Agent in writing not less than five The BlackRock Lenders (5or one or more of their designated affiliates or other designees) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to received executed counterparts of the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Board Observer Side Letter.
(d) At least five The Lenders (5or one or more of their designated affiliates or other designees) days prior shall have received executed counterparts of the Tranche 1 Warrants.
(e) The Administrative Agent shall have received evidence satisfactory to the Closing DateAdministrative Agent that the Cayman Islands Monetary Authority has approved the Borrower’s entry into the Loan Documents. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, upon the express release of their signatures, the Administrative Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerAdministrative Agent or such Lender.
Appears in 1 contract
Sources: Term Loan Agreement (Root, Inc.)
Conditions to Effectiveness. The obligations As conditions precedent to the effectiveness of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).this Agreement:
(a1) The Administrative Agent and the Joint Lead Arrangers Borrower shall have received all fees and other amounts due and payable on delivered or prior shall have caused to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel be delivered to the Administrative Agent) required , in form and substance satisfactory to be reimbursed or paid the Lenders and their counsel and duly executed by the Borrower hereunderappropriate Persons (with sufficient copies for each of the Lenders), under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received each of the following:
(iA) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this This Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under To the Existing Credit Agreements have been paid (includingextent requested by any Lender pursuant to Section 1.8(6) above and not previously delivered, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and a Revolving Loan Note payable to such Lender;
(C) The REIT Guaranty and the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementSubsidiary Guaranty;
(iiiD) a The Pledge Agreements;
(E) A certificate of the Secretary or Assistant Secretary of the limited liability company or general partner, managing member or other managing Person or Persons, as applicable, of those Borrower in the form of Exhibit 3.1(b)(iii), Parties which are partnerships or limited liability companies that do not have officers attaching and certifying copies of its bylaws and resolutions duly adopted by the Board of the resolutions Directors of its boards of directorssuch general partner, authorizing managing member or other managing Person or Persons, as applicable, approving the execution, delivery and performance of the Credit Loan Documents on behalf of such Borrower Parties and certifying the name, title names and true signature signatures of the officers of such limited liability company or, for partnerships or limited liability companies that do not have officers, such general partner, managing member or other managing Person or Persons, as applicable, authorized to sign the Loan Documents to which such Borrower Parties are party;
(F) A certificate or certificates of the Secretary or an Assistant Secretary of those Borrower Parties which are corporations attaching copies of resolutions duly adopted by the Board of Directors of such Borrower Parties approving the execution, delivery and performance of the Loan Documents to which such Borrower Parties are party and certifying the names and true signatures of the officers of each officer of such Borrower Parties authorized to sign the Loan Documents on behalf of such Borrower Parties;
(G) An opinion of counsel for the Borrower Parties as of the Closing Date, in form and substance reasonably acceptable to the Administrative Agent and the Lenders;
(H) Copies of the Certificate of Incorporation, Certificate of Formation, or Certificate of Limited Partnership of each of the Borrower executing the Credit Documents;
(iv) Parties, certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from by the Secretary of State of the jurisdictions state of organization formation of the Borrowersuch Person;
(v) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Joinder Agreement (Macerich Co)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make the initial Loans and the obligation of the Issuing Bank to issue any initial Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower Borrowers hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArranger (including the Fee Letter).
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Lenders:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) duly executed Revolving Credit Notes, if requested, payable to such Lender and the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementSwingline Lender;
(iii) the Guaranty and Security Agreement duly executed by the parties thereto;
(iv) copies of duly executed payoff letters, in form and substance satisfactory to Administrative Agent, executed by the Existing Agent, together with (a) UCC-3 or other appropriate termination statements, in form and substance satisfactory to Administrative Agent, releasing all Liens in favor of the Existing Agent upon any of the personal property of the Borrowers and their Subsidiaries, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all Liens in favor of the Existing Agent upon any of the real property of the Borrowers and their Subsidiaries, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of the Existing Indebtedness;
(v) [Intentionally Omitted];
(vi) [Intentionally Omitted];
(a) evidence that the Loan Parties shall have established one or more Blocked Accounts with respect to the collection of Accounts and the deposit of the proceeds thereof and (b) the Administrative Agent, the applicable Borrower and the applicable depository bank shall have entered into a Deposit Account Control Agreement with respect to each deposit account of the Borrowers other than Excluded Accounts;
(viii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.01(b)(viii), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivix) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign entity;
(vx) a favorable written opinion of inside or outside (a) ▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and (b) ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, regulatory counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vixi) a certificate in the form of Exhibit 3.1(b)(vi3.01(b)(xi), dated the Closing Date and signed by a Financial Responsible Officer, certifying that that, after giving effect to the funding of any initial Loan or initial issuance of a Letter of Credit (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects both immediately before and immediately after giving effect to the closing of the transactions contemplated by this Agreement, and (Cz) since September 30, 2020the date of the financial statements of AboveNet described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viixii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(xiii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiixiv) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding this Agreement or any transaction being financed with the proceeds hereof shall be ongoing;
(ixxv) copies of insurance policies or certificates of insurance of the Borrowers and their Domestic Subsidiaries evidencing liability and casualty insurance meeting the requirements set forth in the Loan Documents and in each case in form and substance satisfactory to the Administrative Agent;
(xvi) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending Fiscal Quarter ended on December 31September 30, 2020 2010, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30Fiscal Years ended 2007, 2020 2008 and 2009;
(it being agreed xvii) a certificate from the Chief Financial Officer of AboveNet to the effect that this clause both before and after giving effect to (ixa) is satisfied the Loans to be made or extended on the Closing Date, the issuance of the guaranties of the Obligations and the pledge of assets as security therefor by all of the Loan Parties and the requested issuance of each Letter of Credit, (b) the disbursement of the proceeds of such Loans and issuance of such Letters of Credit pursuant to the instructions of the Loan Parties, (c) the consummation of the transactions contemplated in the Loan Documents (including the repayment of the Existing Indebtedness) and (d) the payment and accrual of all transaction costs in connection with the foregoing, the Loan Parties individually and taken as a whole are Solvent;
(xviii) evidence that all Required PUC Consents have been either received by the Borrower’s filings Administrative Agent or, where only filing is required, prepared by the applicable Loan Parties and filed with the Securities and Exchange Commission prior applicable PUC;
(xix) certified copies of all Material Contracts;
(xx) confirmation that no litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is pending against or, to the date hereofknowledge of any of the Borrowers, threatened against the Borrowers or any of their Subsidiaries that could reasonably be expected to have a Material Adverse Effect;
(xxi) all information the Administrative Agent and each Lender may request with respect to the Borrowers and their Subsidiaries in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and any other "know your customer" or similar laws or regulations; and
(xxxii) such certificates of insurance issued on behalf of insurers of the Borrowers and all other documentsLoan Parties, certificates describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Loan Parties, naming the Administrative Agent as additional insured on liability policies and loss payee for property and casualty policies. Without limiting the generality of the provisions of Section 3.1, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or information as the Joint Lead Arrangers may reasonably requestaccepted or to be satisfied with, all in form and substance reasonably each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Joint Lead ArrangersAdministrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
(c) To The Administrative Agent shall have received (i) the extent certificates, if any, representing the shares of Capital Stock pledged pursuant to the Guaranty and Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) each promissory note pledged to the Administrative Agent pursuant to the Guaranty and Security Agreement endorsed) in blank (or accompanied by an executed transfer form in blank reasonably satisfactory to the Administrative Agent) by the pledgor thereof.
(d) Each document (including, without limitation, any UCC financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in writing not less than five (5) Business Days prior order to the Closing Date, create in favor of the Administrative Agent Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than Permitted Liens), shall have receivedbe in proper form for filing, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)registration or recordation.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2 or otherwise permitted to be satisfied after the Closing Date pursuant to Section 5.16):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Lead Arrangers and their Affiliates (including reasonable fees, charges and disbursements of one primary counsel to the Administrative Agent, one local counsel in each applicable jurisdiction and any special regulatory counsel) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws (A) such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, certified as of a recent date by the Secretary of State of the jurisdiction of organization of such Loan Party, or certifying that there have been no changes to such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, as applicable, certified by the Secretary of State of the jurisdiction of organization of such Loan Party and delivered to the Administrative Agent on the Original Closing Date or on the date of such Loan Party’s joinder as a Loan Party, as applicable, (B) such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable, or certifying that there have been no changes to such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable, delivered to the Administrative Agent on the Original Closing Date or on the date of such Loan Party’s joinder as a Loan Party, as applicable, (C) the resolutions of its boards such Loan Party’s board of directors, managers, members, general partner or other equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party, (D) certificates of good standing or existence, as applicable, from the Secretary of State of the jurisdiction of incorporation or organization of such Loan Party and certifying each other jurisdiction where the failure of such Loan Party to be qualified to do business as a foreign company would have a Material Adverse Effect, in each case as of a recent date, and (E) a certificate of incumbency containing the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which such Loan Party is a party;
(iviii) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion opinions of inside or outside Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and Albright, Stoddard, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Nevada counsel to the Loan Parties, in each case, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viiv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(iv), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the Related Transactions, (A) no Default or Event of Default existshas occurred and is continuing on the Closing Date, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (date of the financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects statements of the Borrower described in Section 4.4(i), there has been no change which has had or could reasonably be expected to have a Material Adverse Effect and its subsidiaries taken as a whole(D) the conditions set forth in clause (b)(vii) below have been satisfied;
(viiv) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with for any initial Revolving Borrowing;
(vi) a report setting forth the sources and uses of the proceeds hereof;
(viiivii) [Reserved.]all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents, the other Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixviii) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Fiscal Quarter ended September 30, 2020 2015, including the related statements of income and cash flows, (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending Fiscal Year ended December 31, 2014, including in each case the related statements of income, shareholders’ equity and cash flows, and (C) financial projections on an annual basis through December 31, 2020;
(ix) a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of September 30, 2020 2015, calculated on a pro forma basis as if any initial Revolving Borrowing had been funded and the other Related Transactions had occurred, as of the first day of the relevant period for testing compliance (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereofsetting forth in reasonable detail such calculations); and;
(x) such other documentsa certificate, certificates or information as dated the Joint Lead Arrangers may reasonably requestClosing Date and signed by the chief financial officer of the Borrower, all in form confirming that the Borrower is, and substance reasonably satisfactory the Borrower and its Subsidiaries, on a consolidated basis, are, Solvent before and after giving effect to the Joint Lead Arrangers.funding of any initial Revolving Borrowing and the consummation of the other Related Transactions contemplated to occur on the Closing Date;
(cxi) To the extent Guaranty and Security Agreement, duly executed by the Borrower and each of its Domestic Subsidiaries (other than the Excluded Subsidiaries), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in writing not less order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than five (5) Business Days prior Permitted Encumbrances and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries (other than the Excluded Subsidiaries) owned directly by any Loan Party; provided that, in the case of Capital Stock of any Foreign Subsidiary that is a CFC and Capital Stock of any Pass-Through Foreign Holdco, such original certificates shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (F) stock or membership interest powers or other appropriate instruments of transfer executed in blank and (G) a master intercompany promissory note duly executed by the Borrower and its Subsidiaries;
(xii) with respect to the Real Estate leased for the corporate headquarters of the Loan Parties, a copy of the underlying lease and a Collateral Access Agreement, which Collateral Access Agreement shall be reasonably satisfactory in form and substance to the Administrative Agent; provided that this condition shall be deemed to be satisfied if the Borrower uses its commercially reasonable efforts to deliver such Collateral Access Agreement on the Closing Date (whether or not any such Collateral Access Agreement is delivered on the Closing Date) and the Borrower shall use its commercially reasonable efforts (but not be under any requirement) to deliver such Collateral Access Agreement within thirty (30) days after the Closing Date;
(xiii) certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent shall have receivedas loss payee or additional insured, not later than two as the case may be, together with a lender’s loss payable endorsement in form and substance satisfactory to the Administrative Agent;
(2xiv) calendar at least three (3) days prior to the Closing Date, all documentation and other information with respect to the Borrower and each other Loan Party that the Administrative Agent or any Lender reasonably believes determines is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing DateAct, to the extent reasonably requested by the Borrower qualifies as a “legal entity customer” Administrative Agent at least ten (10) days before the Closing Date; and
(xv) all Control Account Agreements and Sweep Agreements required under Section 5.11, duly executed by the Beneficial Ownership Regulationapplicable Loan Parties, the Borrower applicable depositary or securities intermediary and the Administrative Agent. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall deliver be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Beneficial Ownership Certification in relation Lender unless the Administrative Agent shall have received notice from such Lender prior to the Borrowerproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Conditions to Effectiveness. The obligations effectiveness of this Joinder is subject to the Lenders to make Loans hereunder shall not become effective until the date on which each satisfaction of the following conditions is satisfied (or precedent in a manner satisfactory to Collateral Agent, unless specifically waived in accordance with Section 9.2).writing by Collateral Agent:
A. Collateral Agent shall have received all of the following, each in form and substance satisfactory to Collateral Agent in its sole discretion, and, where applicable, each duly executed by each party thereto, other than Lenders:
(1) This Joinder, duly executed by the Borrowers;
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on certificate of formation, bylaws or prior to the Closing Datesimilar organizational documents of each Peak Borrower, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or good standing certificates for each Peak Borrower issued by its counsel) shall have received the following:
(i) a counterpart jurisdiction of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Dateorganization, (Bc) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards the board of directors, directors or managers of each Peak Borrower authorizing the execution, delivery and performance of the Credit Loan Documents to which such Peak Borrower is a party, (d) certificates of the managers or secretaries of each Peak Borrower, in form and certifying substance satisfactory to Lenders, as to the name, title incumbency and true signature of the officers executing any agreements, documents and instruments in connection herewith, and (e) each officer document (including, without limitation, any UCC financing statement) required by any Loan Document or under law or requested by Collateral Agent to be filed or recorded in order to create, in favor of Lenders, a perfected first priority security interest in or Lien upon such Collateral owned by Peak Borrowers and evidence of each such filing, registration or recordation and of the Borrower executing the Credit Documentspayment by Borrowers of any necessary fee, tax or expense relating thereto;
(iv3) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;Amendment Fee; and
(v4) a favorable written opinion of inside All other documents Collateral Agent may reasonably request with respect to any matter relevant to this Joinder or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;hereby.
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all B. All representations and warranties of the Borrower set forth Borrowers in the Credit Documents are Loan Agreement or any other Loan Document shall be true and correct in all material respects at and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects as of the Borrower date hereof and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
effective date of this Joinder as though then made, except (viii1) [Reserved.];
(ix) copies of (A) to the quarterly financial statements extent of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied changes caused by the Borrower’s filings with the Securities transactions expressly contemplated herein, and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation for such representations and other information with respect to the Borrower that the Administrative Agent reasonably believes is required warranties as by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (their terms expressly speak as defined below)of an earlier date.
(d) At least five (5) days prior C. No Material Adverse Effect or Material Adverse Change shall have occurred or be reasonably expected to the Closing Dateoccur.
D. No Default or Event of Default shall have occurred and be continuing, unless such Default or Event of Default has been otherwise specifically waived in writing by Requisite Lenders or, only to the extent required by the Borrower qualifies as a “Loan Agreement, all Lenders.
E. All corporate proceedings taken in connection with the transactions contemplated by this Joinder and all documents, instruments and other legal entity customer” under matters incident thereto shall be duly authorized and executed.
F. Payment by Borrowers of all reasonable fees and costs incurred by Collateral Agent in preparation and execution of this Joinder (including reasonable attorneys' fees and costs, title costs and recording fees); provided, however, that the Beneficial Ownership Regulation, the Borrower Borrowers shall deliver a Beneficial Ownership Certification in relation only be required to pay such fees and costs that are invoiced to the BorrowerBorrowers no later than one business day prior to funding in order to comply with this condition to effectiveness (but in all events, such fees and costs shall be paid promptly after invoiced to the Borrowers regardless as to whether such invoice is delivered later than one business day prior to funding).
Appears in 1 contract
Sources: Loan and Security Agreement (Sun Healthcare Group Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including upfront fees for the Lenders and reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement and each other Loan Document (other than the Notes) signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) duly executed Revolving Credit and Term Notes payable to such Lender and the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Swingline Lender, in each case, only if requested by such Lender at least one (1) Business Days Day prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) delivery of updated lien searches in form and substance reasonably satisfactory to the Administrative Agent;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower General Partner in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, the partnership agreement, or comparable organizational documents and authorizations of the Borrower, authorizing the execution, delivery and performance of the Credit Loan Documents to which the Borrower is a party, and certifying the name, title attaching true and true signature of each officer correct copies of the Borrower executing TC PipeLines ILP Agreement, the Credit DocumentsTuscarora ILP Partnership Agreement, the Northern Border Partnership Agreement;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of the BorrowerBorrower and its General Partner, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the BorrowerBorrower and its General Partner, and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation;
(vvi) a certificate dated as of the Closing Date and signed by a responsible officer, certifying the name, title and true signature of each officer of the General Partner executing the Loan Documents on behalf of the Borrower to which the Borrower is a party;
(vii) a favorable written opinion of inside or outside ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(viii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]Material Adverse Effect;
(ix) [RESERVED];
(x) copies of (A) the audited financial statements of GLGT for its fiscal years ended 2004 and 2005 and the internally prepared quarterly financial statements of GLGT for its fiscal quarter ended on September 30, 2006 as well as a projected consolidated balance sheet of the Borrower and its Subsidiaries on a consolidated basis for as of the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior Closing Date after giving effect to the date hereof)GLGT Acquisition; and
(xxi) such other documents, certificates or information a certificate dated as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to of the Closing DateDate and signed by a responsible officer, attaching true and correct copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of the Administrative Agent Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have receivedexpired, not later than two (2) calendar days prior to and no investigation or inquiry by any governmental authority regarding the Closing Date, all documentation and other information Commitments or any transaction being financed with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)proceeds thereof shall be ongoing.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Tc Pipelines Lp)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers Lenders shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Collateral Agent and the Lenders (including the fees and expenses of ▇▇▇▇▇▇ & Co. and the reasonable fees, charges and disbursements of (i) a single counsel to the Administrative AgentLenders and a single local counsel to the Lenders in each applicable jurisdiction and (ii) a single counsel to the Collateral Agent and a single local counsel to the Collateral Agent in each applicable jurisdiction) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with any Lender. The Borrower shall have pre-paid all recording and filing costs with respect to the Administrative Agent or Mortgages, as identified by the Joint Lead ArrangersLenders to the Borrower.
(b) The Administrative Agent Lenders (or its their counsel) shall have received the following, each to be in form and substance satisfactory to each Lender:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent Lenders (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) a counterpart of the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Intercreditor Agreement, duly executed by the First Lien Agent and (C) acknowledged by the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementLoan Parties;
(iii) a counterpart of a Notice of Borrowing, duly executed by the Borrower requesting Loans on the Closing Date in an aggregate principal amount equal to $31,000,000;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside Fulbright and ▇▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, and a written opinion of Steptoe & ▇▇▇▇▇▇▇ PLLC, each addressed to the Administrative Collateral Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Collateral Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of any initial Loan, (Ax) no Default or Event of Default exists, and (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct (other than the representations and warranties that are made as of a specific date, in all material respects which case such representations and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwisewarranties are true and correct as of such date), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]all consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ix) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Fiscal Quarter ended June 30, 2020 2011 and (B) financial projections on a quarterly basis for the audited consolidated financial Fiscal Year ending December 31, 2011 and annually thereafter through December 31, 2015;
(x) a certificate, dated the Closing Date and signed by a Responsible Officer of each Loan Party, confirming that the Loan Parties, taken as a whole, are Solvent before and after giving effect to the funding of the initial Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(xi) evidence, in form and substance satisfactory to the Lenders, that Magnum has contributed to the Borrower at least $30,000,000 in cash equity;
(xii) the Security Agreement, duly executed by the Borrower and each of its Domestic Subsidiaries, together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Security Agreement, as requested by the Collateral Agent or the Required Lenders in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal names of the Loan Parties, as requested by the Collateral Agent or the Required Lenders, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Closing Date, and (C) a Perfection Certificate, duly completed and executed by the Borrower;
(xiii) the Pledge Agreement, duly executed by Triad, together with (A) any original certificates evidencing all issued and outstanding shares of Equity Interests pledged to the Collateral Agent under the Pledge Agreement and (B) stock or membership interest powers or other appropriate instruments of transfer executed in blank;
(xiv) Mortgages covering all Material Real Estate as of the Closing Date, duly executed by the appropriate Loan Party, together with (a) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered by the appropriate Loan Party and are in form suitable for filing or recording in all filing or recording offices that the Collateral Agent or the Lenders may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all West Virginia mortgage taxes and all filing, documentary, stamp, intangible and recording taxes and fees have been paid, (b) evidence that all other actions (other than actions requiring notices to or consents from account debtors, counterparties or other third parties) that the Collateral Agent or the Lenders may reasonably deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken, and (c) a satisfactory report from ▇▇▇▇▇▇ & Co. with respect to the rights of way for the Pipeline System;
(xv) copies of all Material Agreements;
(xvi) duly executed Triad Gas Gathering Agreement with terms and conditions satisfactory to the Lenders;
(xvii) certificates of insurance, in form and detail acceptable to the Collateral Agent and the Lenders, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Collateral Agent as loss payee or additional insured, as the case may be and subject to the rights of the lenders under the First Lien Credit Agreement as set forth in the Intercreditor Agreement;
(xviii) completion by the Lenders of all due diligence with respect to the Borrower and its Subsidiaries for and all legal and environmental due diligence, in each case, to the fiscal year ending September 30satisfaction of the Lenders;
(xix) all conditions precedent to the closing under the First Lien Credit Agreement shall have been or, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings concurrently with the Securities Closing Date and Exchange Commission prior to funding of the date hereof); andLoans, shall be satisfied. The Lenders shall have received a copy, certified by a Responsible Officer of the Borrower as true and complete, of each First Lien Indebtedness Document as originally executed and delivered, together with all exhibits and schedules thereto;
(xxx) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Datefrom each Loan Party, all documentation and other information that each Lender may reasonably request in order to comply with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities its ongoing obligations under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act Act;
(as defined below)xxi) the Independent Engineer’s Report, including the feasibility study in form and substance satisfactory to the Lenders; and
(xxii) the Master Services Agreement, duly executed by the Borrower and Apex Pipeline Services, Inc. in respect of the Pipeline construction.
(dc) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the The Borrower shall deliver have a Beneficial Ownership Certification in relation Consolidated Total Debt to the BorrowerCapitalization Ratio of equal to or less than sixty percent (60%).
Appears in 1 contract
Sources: Second Lien Term Loan Agreement (Magnum Hunter Resources Corp)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing DateDate for which invoices have been presented, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Left Lead Arranger and their respective Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Left Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreementhereto;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) subject to Section 5.16, certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation where the Borrowerfailure to be so qualified would reasonably be expected to have a Material Adverse Effect;
(viv) a favorable written opinion of inside or outside Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and, if reasonably requested by the Administrative Agent, customary local counsel opinions with respect to the Loan Parties, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the initial Revolving Borrowing, (A) no Default or Event of Default exists, exists and (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholecorrect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreementfor any initial Revolving Borrowing, together with with, if applicable, a report setting forth the sources and uses of the proceeds hereofthereof;
(vii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(viii) [Reserved.];
(ix) copies of (A) the quarterly internally prepared financial statements of the Borrower Parent and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Fiscal Quarter ended June 30, 2020 2015, and (B) the audited consolidated financial statements for the Borrower Parent and its Subsidiaries for the fiscal year ending September 30Fiscal Years ended December 31, 2020 (it being agreed that this clause 2012, December 31, 2013, and December 31, 2014;
(ix) is satisfied a certificate, dated the Closing Date and signed by the Borrower’s filings with the Securities chief financial officer of Parent, confirming that Parent and Exchange Commission prior its Subsidiaries on a consolidated basis are Solvent before and after giving effect to the date hereof); andfunding of the initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(x) the Guaranty and Security Agreement duly executed by each party thereto, together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Collateral Documents, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax, and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other documentsthan Permitted Encumbrances and Liens to be released on the Closing Date, (C) an Information and Collateral Disclosure Certificate, duly completed and executed by the Loan Parties, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) subject to Section 5.16, original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries, owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 66% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) and (F) stock or information membership interest powers or other appropriate instruments of transfer executed in blank;
(xi) subject to Section 5.16, Account Control Agreements, duly executed by each Permitted Third Party Bank and the applicable Loan Party;
(xii) subject to Section 5.16, a Collateral Access Agreement from the landlord of the Borrower’s headquarters location at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; provided, that if the Borrower is unable to deliver such Collateral Access Agreement after using its commercially reasonable efforts to do so, the Administrative Agent shall waive the foregoing requirement;
(xiii) certificates of insurance, in form and detail reasonably acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the Joint Lead Arrangers case may reasonably requestbe, all together with a lender’s loss payable endorsement and additional insured endorsement in form and substance reasonably satisfactory to the Joint Lead Arrangers.Administrative Agent;
(cxiv) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At Act, at least five (5) days Business Days prior to the Closing Date to the extent that such documentation and information was requested by Administrative Agent at least ten (10) Business Days prior to the Closing Date; and
(xv) all certificates and other documentation required by Section 2.20 to be delivered by each Lender as of the Closing Date;
(c) The Lenders shall have completed, to the extent the Borrower qualifies as a “their satisfaction, all business, financial, collateral, regulatory and legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation due diligence with respect to the BorrowerLoan Parties and the Subsidiaries. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 1 contract
Sources: Credit Agreement (LendingTree, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Joint Lead Arrangers and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), (A) attaching and certifying copies of (1) its bylaws bylaws, partnership agreement, limited liability company agreement or comparable organizational document, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and (B) certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(viv) a favorable written opinion of inside or outside (x) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.S. counsel to the BorrowerParent and the Loan Parties, and (y) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., Israeli counsel to the Parent, in each case, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the Borrowerapplicable Loan Parties, the Credit Parent, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial OfficerResponsible Officer of the Borrower, certifying that after giving effect to the funding of the Term Loans, the issuance of the initial Letters of Credit and any initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Borrowing;
(vii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofhereof and the Equity Contribution;
(viii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, the Seller or the Target, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents and the Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ix) a promissory note duly executed by the Borrower in favor of each Lender in the principal amount of each such Lender’s Term Loan Commitment;
(x) copies of (A) the quarterly unaudited consolidated and consolidating balance sheet of the Target and its Subsidiaries as of September 30, 2015 and the related unaudited consolidated and consolidating statements of income, statements of stockholders’ equity and statements of cash flows of the Target and its Subsidiaries for the six (6) month periods ended on September 30, 2014 and September 30, 2015, (B) the unaudited consolidated and consolidating balance sheet of the Target and its Subsidiaries and the related unaudited consolidated and consolidating statements of operations, statements of stockholders’ equity and statements of cash flows of the Target and its Subsidiaries for the months of July, August and September 2015, (C) the audited consolidated and consolidating financial statements of the Target and its Subsidiaries for each of the fiscal years ended on December 31, 2012, December 31, 2013 and December 31, 2014 and the related statements of income, statements of stockholders’ equity and statements of cash flows of the Target on a consolidated and consolidating basis for the year then ended, together with the notes thereto, all as certified by PricewaterhouseCoopers LLP and (D) financial projections for the Borrower and its Subsidiaries (after giving pro forma effect to the Closing Date Acquisition) on a quarterly basis for the Fiscal Year ending December 31, 2016 and annually thereafter through December 31, 2020;
(xi) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower and its Subsidiaries on a consolidated basis as of and for the fiscal quarter Four Quarter period ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 2015 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior “Closing Test Period”), prepared after giving effect to the Related Transactions as if the Related Transactions had occurred as of such date hereof); and
(xin the case of such balance sheet) or at the beginning of such period (in the case of such other documentsfinancial statements), certificates along with supporting or other backup financial information as reasonably requested by the Joint Lead Arrangers may reasonably requestin connection therewith (the “Pro Forma Closing Financial Statements”);
(xii) a duly completed and executed compliance certificate demonstrating that the Total Leverage Ratio is not greater than 2.055 to 1.00, all in form each case for the Closing Test Period, and substance reasonably satisfactory determined by reference to the Joint Lead Arrangers.Pro Forma Closing Financial Statements (setting forth in reasonable detail such calculations);
(cxiii) To a certificate, dated the extent Closing Date and signed by the chief financial officer of each Loan Party, confirming that each Loan Party is Solvent before and after giving effect to the funding of the Term Loans, and any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(xiv) the Guaranty and Security Agreement, duly executed by Holdings and each of its Domestic Subsidiaries other than Immaterial Subsidiaries, together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in writing not less order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of Holdings and its Subsidiaries, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than five (5) Business Days prior Permitted Encumbrances and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Administrative Agent Borrower, (D) duly executed Trademark Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary that is a CFC would result in materially adverse tax consequences, such pledge shall have receivedbe limited to 65% of the issued and outstanding voting Capital Stock, not later than two or other evidence of ownership, of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock, or other evidence of ownership, of such Foreign Subsidiary, as applicable; provided that, in no event shall any such Foreign Subsidiary that is a CFC be required to grant or pledge any interest in the Capital Stock, or other evidence of ownership, of any Subsidiary of any such Foreign Subsidiary) and (2F) calendar days prior to stock or membership interest powers or other appropriate instruments of transfer executed in blank;
(xv) the Closing DatePledge Agreement, all documentation duly executed by the Parent, together with (A) a UCC financing statement and other information applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the Borrower that perfection of the Liens granted in the Collateral under (and as defined in) the Pledge Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Parent, (B) an executed Hebrew translation of the Pledge Agreement, signed by the Borrower, the Parent and the Administrative Agent and (C) Form 10 pursuant to the Supplement of the Israeli Companies Regulations (Report, Registration Details and Forms), 1999 (“Details of Mortgages and Pledges”), duly filed and signed by the Parent’s officer;
(xvi) copies of a duly executed payoff letter, in form and substance satisfactory to the Administrative Agent, executed by Comerica Bank, as administrative agent under the Existing Credit Agreement, together with (a) UCC 3 or other appropriate termination statements, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the personal property of the Borrower and its Subsidiaries, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the real property of the Borrower and its Subsidiaries, (c) any other releases, terminations or other documents reasonably believes required by the Administrative Agent to evidence the payoff of Indebtedness owed to the Existing Lenders and to Comerica Bank, as administrative agent under the Existing Credit Agreement and (d) confirmation from Comerica Bank, as administrative agent under the Existing Credit Agreement, that payment has been received in respect of the Existing Credit Agreement in an amount sufficient to repay and satisfy in full all Indebtedness under the Existing Credit Agreement (and otherwise required under such payoff letter to release all liens on all assets of the Borrower and its Subsidiaries) other than the net amount to be funded by the Administrative Agent on behalf of the Lenders hereunder as described in clause (vii) immediately above;
(xvii) certified copies of all Material Agreements;
(xviii) evidence that no Indebtedness of Holdings or its Subsidiaries remains outstanding as of the Closing Date (other than Indebtedness permitted to remain outstanding as set forth on Schedule 7.1);
(xix) such documents and other information regarding the Borrower, the Parent and the Guarantors as has been reasonably requested by the Administrative Agent or the Joint Lead Arrangers that they determine is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act Act; and
(xx) certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as defined below)loss payee or additional insured, as the case may be.
(c) The Equity Contribution shall have occurred in accordance with the Equity Documents, without alteration, amendment or other change, supplement or modification of the Equity Documents except as approved in writing by the Required Lenders. The Administrative Agent (or its counsel) shall have received certified copies of all Equity Documents, each in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers.
(d) At least five All conditions precedent to the Closing Date Acquisition, other than the funding of the Loans, shall have been satisfied (5including confirmation that the Closing Date Certificate of Merger has been filed and confirmation that the Closing Payment (as defined in the Closing Date Acquisition Agreement) days has been paid to the Paying Agent (as defined in the Closing Date Acquisition Agreement) on or before the Closing Date in accordance with the terms of the Merger Agreement), and the Closing Date Acquisition shall be consummated simultaneously with the closing and funding of the Loans in accordance with the Closing Date Acquisition Agreement, without alteration, amendment or other change, supplement or modification of the Closing Date Acquisition Agreement except for waivers of conditions that are not material or adverse to the Lenders or as otherwise approved in writing by the Required Lenders. The Administrative Agent (or its counsel) shall have received certified copies of the Closing Date Acquisition Agreement and all other material Closing Date Acquisition Documents, together with all material agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request, each in form and substance satisfactory to the Administrative Agent and the Joint Lead Arrangers and each including certification by a Responsible Officer of the Borrower that such documents are in full force and effect as of the Closing Date. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Banks to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, all fees payable pursuant to the Fee Letter and reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, Truist Securities, Inc. and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation (subject to Section 5.17), certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of such Loan Party (and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation solely to the Borrowerextent that the failure to be so qualified as a foreign corporation in such other jurisdiction could result in a Material Adverse Effect);
(viv) a favorable written opinion of inside or outside (A) Tin ▇▇▇ ▇▇▇ Law Offices, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Banks and the Lenders) and (B) ▇▇▇▇▇ ▇▇▇▇ LLP, addressed to the Administrative Agent, each Issuing Bank and each of the Lenders, and covering certain matters relating to the Investment Company Act of 1940;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreementfor the initial Revolving Borrowing, together with a report setting forth the sources and uses of the proceeds hereofthereof;
(vii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents and (to the extent applicable) APC 2019 Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(viii) [Reserved.]copies of the Historical Financial Statements;
(ix) copies of (A) the quarterly financial statements projections of the Borrower and its Subsidiaries (to be made on a consolidated pro forma basis after giving effect to the consummation of the Related Transactions) for the fiscal quarter Fiscal Year ending on December 31, 2020 2022 and for each Fiscal Year ending thereafter through the Fiscal Year ending December 31, 2025;
(x) [reserved];
(xi) a certificate, dated the Closing Date and signed by the chief financial officer of each Loan Party, confirming that each Loan Party is Solvent before and after giving effect to the funding of the initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(xii) (A) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties and their Subsidiaries and the Material Associated Practices, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Closing Date and (B) the audited consolidated financial statements for the Borrower a Perfection Certificate, duly completed and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied executed by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and;
(xxiii) such other documents, certificates or information as a counterpart of the Joint Lead Arrangers may reasonably request, all in form Reaffirmation Agreement and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to Master Amendment dated the Closing Date, duly executed by each Loan Party (the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined belowReaffirmation Agreement”).;
(dxiv) At at least five (5) days prior to the Closing Datedate of this Agreement, to all documentation and other information required by bank regulatory authorities or reasonably requested by the extent Administrative Agent or any Lender under or in respect of applicable “know your customer” and anti-money laundering legal requirements including the Patriot Act and, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to Borrower;
(xv) certified copies of all Material Agreements (including, for the Borroweravoidance of doubt, the Associated Practice Documents); and
(xvi) subject to Section 5.17, certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be, together with a lender’s loss payable endorsement in form and substance satisfactory to the Administrative Agent. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 1 contract
Conditions to Effectiveness. The obligations effectiveness of this Agreement, as well as the obligation of the Lenders Banks to make the initial Loans hereunder and of the Agent to issue Letters of Credit hereunder shall not become effective until be subject to the satisfaction of the conditions precedent, in addition to the applicable conditions precedent set forth in Sections 6.2 and 6.3 below, that the Agent shall have received all of the following, in form and substance satisfactory to the Agent, each duly executed and certified or dated as of the date on which each of this Agreement or such other date as is satisfactory to the following conditions is satisfied (or waived in accordance with Section 9.2).Agent:
(a) The Administrative Agent Notes payable to each Bank executed by a duly authorized officer (or officers) of the Company (or Company and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing DateBorrowing Subsidiary, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangersif applicable).
(b) The Administrative Agent Pledge Agreement, together with delivery of any certificate evidencing the stock or Ownership Interest of Foreign Subsidiaries pledged thereby and executed assignments separate from certificate (stock powers) for such certificates.
(c) The Guaranties required hereunder, executed by a duly authorized officer of each Subsidiary required to be a Guarantor hereunder.
(d) A certificate or its counsel) shall have received certificates of the following:
Secretary or an Assistant Secretary of each Borrower and each Guarantor, attesting to and attaching (i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” copy of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate corporate resolution of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, Company authorizing the execution, delivery and performance of the Credit Documents Loan Documents, (ii) an incumbency certificate showing the names and certifying titles, and bearing the namesignatures of, title the officers of such Borrower or Guarantor authorized to execute the Loan Documents, and true signature of each officer (iii) a copy of the Organizational Documents of such Borrower executing the Credit Documents;or Guarantor with all amendments thereto.
(ive) A Certificate of Good Standing for the Company and each Guarantor certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from by the Secretary of State or equivalent body in the applicable jurisdiction of the jurisdictions of organization of the Borrower;incorporation.
(vf) a favorable written An opinion of inside or outside counsel to the BorrowerCompany, the Guarantors and any Borrowing Subsidiary, addressed to the Administrative Agent and each of the LendersBanks, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in substantially the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;F.
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiig) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(ch) To the extent requested by the Administrative Agent in writing not less than five [Reserved].
(5i) Business Days prior to the Closing Date, the Administrative The Agent shall have received, not later than two (2) calendar days prior to received a copy of the Closing Date, all documentation Intercreditor Agreement executed and other information with respect to delivered by the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Senior Noteholders.
(dj) At least five Payment of all fees and expenses due and payable as of the effectiveness of this Agreement under or in connection with the Fee Letters upon the effectiveness of this Agreement.
(5k) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower[Reserved].
Appears in 1 contract
Sources: Credit Agreement (Graco Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender;
(iii) a counterpart of the Fee Letter signed by the Borrower;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(ivv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the BorrowerBorrower and each other jurisdiction in which the failure to so qualify and be in good standing would have or would reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and respects, (C) since September 30, 20202004, there shall have been no material adverse change that has had or could be reasonably expected to have a Material Adverse Effect, other than as a result of Hurricane ▇▇▇▇▇▇▇ and its after-effects, (D) there are no actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or, to the knowledge of the Borrower, threatened against the Borrower, any of its Subsidiaries or any of its properties which would have or be reasonably expected to have a Material Adverse Effect and (E) except as would not result or be reasonably expected to result in a Material Adverse Effect and except as may have resulted from Hurricane ▇▇▇▇▇▇▇ or its after-effects: (a) each of the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as and all operations at such properties are in compliance in all material respects with all applicable Environmental Laws, (b) there is no violation of any Environmental Law with respect to the properties or the businesses operated by the Borrower or its Subsidiaries, and (c) there are no conditions relating to the businesses or properties that would reasonably be expected to give rise to a whole;material liability under any applicable Environmental Laws.
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiiix) [Reserved.];certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing; and
(ixx) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31June 30, 2020 2005, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries subsidiaries for the fiscal year Fiscal Years ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2002, 2003 and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers2004.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2). The Administrative Agent and the Borrower shall execute a notice confirming the satisfaction of such conditions and the occurrence of the Closing Date.
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent shall have completed and be satisfied with all due diligence with respect to the Borrower and its Subsidiaries, including but not limited to review of the Underwriting Policies, risk management procedures, accounting policies, systems integrity, compliance, management and organizational structure, and the loan and investment portfolio of the Borrower and its Subsidiaries;
(c) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing duly executed Revolving Credit Agreements Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementsuch Lender;
(iii) duly executed originals of any Control Agreement with respect to Cash Collateral held with any financial institution other than Administrative Agent or its affiliates.
(iv) the duly executed Security Agreement together with other applicable documents under the laws of the jurisdictions with respect to the perfection of the Liens granted on the Cash Collateral under the Security Agreement, as requested by the Administrative Agent in order to perfect such Liens;
(v) the Subsidiary Guarantee Agreement duly executed by each Subsidiary;
(vi) copies of duly executed payoff letters, if any, in form and substance satisfactory to Administrative Agent, together with (a) UCC-3 or other appropriate termination statements, in form and substance satisfactory to Administrative Agent, releasing all Liens (other than Permitted Encumbrances) upon any of the personal property of the Borrower and its Subsidiaries, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all Liens (other than Permitted Encumbrances) upon any of the real property of the Borrower and its Subsidiaries, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of Indebtedness owed by the Borrower and its Subsidiaries;
(vii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(vii), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vix) a favorable written opinion of inside or outside Paul, Hastings, J▇▇▇▇▇▇▇ & W▇▇▇▇▇, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vix) a certificate in the form of Exhibit 3.1(b)(vi3.1(c)(x), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viixi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Revolving Borrowing;
(xii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiixiii) [Reserved.]a duly completed and executed certificate of the type described in Section 5.1(c) including calculations of the financial covenants set forth in Article VI hereof as of February 28, 2007;
(ixxiv) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(xv) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31February 28, 2020 2007, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Year ending September November 30, 2020 2006;
(it being agreed that this clause xvi) certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all other material agreements, documents and instruments to which any Loan Party or any of its assets are bound;
(ixxvii) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof)duly executed Intercreditor Agreement; and
(xxviii) such other documents, certificates or information as duly executed copy of the Joint Lead Arrangers may reasonably request, all Investment Credit Agreement and the documents executed in form and substance reasonably satisfactory to the Joint Lead Arrangersconnection therewith.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Kayne Anderson Energy Development Co)
Conditions to Effectiveness. The obligations of the --------------------------- Lenders (including the Swingline Lender) to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).. ------------
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Equitable Securities Corporation, as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, duly executed Notes payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest a duly executed Subsidiary Guaranty Agreement and fees), or will be repaid substantially concurrently with the closing of this Agreement, Indemnity and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Contribution Agreement;
(iiiiv) copies of duly executed payoff letters, in form and substance satisfactory to Administrative Agent, executed by each of the Existing Lenders;
(v) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside counsel to ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, Vice President, General Counsel and Secretary of the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition of Section 3.2; ----------- (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(viiix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreementBorrowing, together with a report setting forth the sources and uses of the proceeds hereofif applicable;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders Purchasers to make Loans hereunder purchase the Notes shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Collateral Agent and the Joint Lead Arrangers Purchasers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including to the extent invoiced in reasonable detail at least one (1) Business Day prior to the Closing Date, including, without limitation, reimbursement or payment of all out-of-pocket reasonable and documented (in summary form) costs and expenses of the Collateral Agent (including reasonable feesincluding, charges but not limited to, attorneys’ fees and disbursements of counsel to costs), the Administrative Agent) Purchasers and their Affiliates, in each case, required to be reimbursed or paid by the Borrower Issuer hereunder, under any other Credit Document Note Document, the Fee Letters, the Commitment Letter and under any other agreement with the Administrative Collateral Agent or the Joint Lead Arrangersany Purchaser.
(b) The Administrative Collateral Agent and the Purchasers (or its counseltheir respective counsels) shall have received the following, each to be in form and substance reasonably satisfactory to the Collateral Agent and the Purchasers:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreementhereto;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary (or other comparable Responsible Officer) of the Borrower each Note Party in substantially the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards of directorsGoverning Body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Note Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Note Party executing the Credit DocumentsNote Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Note Party, together with certificates of good standing or existence, as may be available from the Secretary of State of (A) the jurisdictions jurisdiction of organization of such Note Party and (B) each other jurisdiction where such Note Party is required to be qualified to do business as a foreign corporation where the Borrowerfailure to be so qualified would reasonably be expected to have a Material Adverse Effect;
(viv) a favorable written opinion of inside or outside Dechert LLP, counsel to the BorrowerNote Parties, and, if reasonably requested by the Required Purchasers, customary local counsel opinions with respect to certain Note Parties each addressed to the Administrative Collateral Agent and each of the LendersPurchasers, and covering such matters relating to the BorrowerNote Parties, the Credit Note Documents and the transactions contemplated therein as the Administrative Collateral Agent or the Required Lenders Purchasers shall reasonably request;
(viv) a certificate in substantially the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event after giving effect to the purchase of Default existsthe Notes, (Bx) all since December 31, 2016, no event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, that has resulted in a Material Adverse Effect has occurred, (y) at the time of and immediately after giving effect to the purchase and sale of the Notes hereunder, the representations and warranties of the Borrower set forth in this Agreement and the Credit other Note Documents are shall be true and correct in all material respects (other than those representations and warranties (i) that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects or (ii) that expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (Cz) since September 30, 2020, there shall have been no material adverse change in at the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects time of and immediately after giving effect to the purchase and sale of the Borrower and its subsidiaries taken as a wholeNotes hereunder, no Default or Event of Default shall exist;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofof the Notes;
(vii) the ABDC Intercreditor Agreement, duly executed and delivered by the parties thereto;
(viii) [Reserved.]certified copies of all material consents, approvals, authorizations, registrations, filings and orders required to be made or obtained under any Requirement of Law, or by any material Contractual Obligation of any Note Party, in connection with the execution, delivery, performance, validity and enforceability of the Note Documents or any of the transactions contemplated thereby, if any, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired,;
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 described in Section 4.4(a) and (B) the audited consolidated financial statements for the Borrower Issuer and its Subsidiaries Subsidiaries’ statement of profit and loss for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); andMay 2017;
(x) such other documentsthe Guaranty and Security Agreement, certificates or information as duly executed by the Issuer and each of its Domestic Subsidiaries (but excluding any Specified Strategic Joint Lead Arrangers may reasonably requestVenture (in each case, all in form and substance reasonably satisfactory if formed prior to the Joint Lead Arrangers.
Closing Date)), together with (cA) To UCC financing statements and other applicable documents under the extent laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as reasonably requested by the Administrative Collateral Agent, acting at the direction of the Required Purchasers, or the Required Purchasers in order to perfect such Liens, duly authorized by the Note Parties, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Note Parties, as reasonably requested by the Collateral Agent, acting at the direction of the Required Purchasers, or the Required Purchasers, indicating that there are no prior Liens on any of the Collateral other than Specified Permitted Liens and Liens to be released on the Closing Date, (C) an Information and Collateral Disclosure Certificate, duly completed and executed by the Note Parties, (D) as necessary, duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, and (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Note Party (or, in the case of any Foreign Subsidiary directly owned by a Note Party, not more than 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary), in each case, to the extent certificated prior to the Closing Date, and related stock or membership interest powers or other appropriate instruments of transfer executed in blank;
(xi) a summary, which may include a flow chart and summary of the Note Parties’ and their Subsidiaries’ cash management system, setting forth in reasonable detail the principal bank accounts of the Note Parties and their Subsidiaries where any cash balances and proceeds of receivables are collected, aggregated and/or maintained in the ordinary course of business, other than Excluded Accounts;
(xii) subject to Section 5.16 and the Issuer’s use of commercially reasonable efforts, with respect to the chief executive office of the Issuer and each additional leased property where books or records are stored or located, a copy of the underlying lease, as applicable, and a Collateral Access Agreement from the landlord of such leased property; provided that if such Note Party is unable to deliver any such Collateral Access Agreement after using its commercially reasonable efforts to do so, the Required Purchasers shall waive the foregoing requirement in their reasonable discretion;
(xiii) copies of duly executed payoff letters with respect to any existing Indebtedness in respect of the Existing Credit Agreement and the other Loan Documents (as defined in the Existing Credit Agreement) and the Existing Priming Credit Agreement and the other Loan Documents (as defined in the Existing Priming Credit Agreement), together with (A) UCC-3 or other appropriate termination statements releasing all liens of the existing lenders upon any of the personal property of the Issuer and its Subsidiaries and authorizations to file such UCC-3s, (B) cancellations and releases releasing all liens of the existing lenders upon any real property owned by the Issuer and its Subsidiaries, and (C) any other releases, terminations or other documents reasonably required by the Required Purchasers to evidence the payoff of such Indebtedness;
(xiv) the First Lien/Second Lien Intercreditor Agreement, duly executed and delivered by the parties thereto;
(xv) (A) certificates of insurance describing the types and amounts of insurance (property and liability) maintained by any of the Note Parties, in each case naming the Collateral Agent as loss payee or additional insured, as the case may be, and (B) subject to Section 5.16, a lender’s loss payable endorsement (in writing the case of each of the foregoing clauses (A) and (B), other than with respect to any director and officer indemnification policies, workers’ compensation policies and any policies that provide coverage for property that does not less than constitute Collateral);
(xvi) documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering laws at least five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior Date to the Closing Date, all extent that such documentation and other information with respect to was requested by the Borrower that the Administrative Collateral Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act or any Purchaser at least ten (as defined below).
(d) At least five (510) days prior to the Closing Date; and
(xvii) a certificate, dated the Closing Date and signed by a Responsible Officer of the Issuer on behalf of each Note Party, confirming that after giving effect to the extent execution and delivery of the Borrower qualifies as Note Documents, the incurrence on the Closing Date of the Notes (and the use of proceeds thereof on the Closing Date), and the other transactions contemplated herein to occur on the Closing Date, the Issuer and its Subsidiaries on a “legal entity customer” consolidated basis are Solvent.
(c) The Note Parties shall have used commercially reasonable efforts to deliver Account Control Agreements and Government Receivables Account Agreements, duly executed by each Permitted Third Party Bank and the applicable Note Party to the Collateral Agent and the Purchasers; provided that, if such Account Control Agreements and Government Receivables Account Agreements are not delivered by the Closing Date, the applicable Note Party shall deliver such Account Control Agreements and Government Receivables Account Agreements within ninety (90) days following the Closing Date.
(d) There shall be no Indebtedness for borrowed money of the Issuer or any of its Subsidiaries to any Person, other than the Notes, the First Lien Notes, the Senior Notes and other Indebtedness reasonably satisfactory to the Purchasers.
(e) There shall not be any pending or threatened in writing litigation, investigation or other proceedings or inquiry (private or governmental) seeking to enjoin the transactions contemplated by this Agreement and the other Note Documents.
(f) The Issuer shall have received the cash proceeds of the purchase of the First Lien Notes.
(i) The Issuer shall have complied in all material respects with and be in compliance in all material respects with all of the of terms and conditions of the Commitment Letter and the Ares Closing Payment Letter and (b) the representations and warranties of the Issuer set forth under the Beneficial Ownership Regulationheading “Evaluation Material” in the Commitment Letter shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) as of the Closing Date.
(h) The Issuer shall have sold to each Purchaser (or its designee) Warrants (as defined in the Warrant Purchase Agreement, the Borrower “Warrants”) to purchase the percentage of the Fully Diluted (as defined in the Warrant Purchase Agreement) Common Stock (as defined in the Warrant Purchase Agreement) set forth next to such Purchaser’s (or its designee’s) signature page to that certain Warrant Purchase Agreement, dated as of the Closing Date (the “Warrant Purchase Agreement”), among the Issuer and each Purchaser (or its designee), and shall deliver have complied with all conditions, covenants and agreements in the Warrant Purchase Agreement. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Purchaser that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Beneficial Ownership Certification in relation Purchaser unless the Issuer shall have received notice from such Purchaser prior to the Borrowerproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Second Lien Note Purchase Agreement (BioScrip, Inc.)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust R▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement[Reserved];
(iii) evidence satisfactory to Administrative Agent that the Existing Credit Agreement has been terminated and all amounts owing to the Lenders thereunder have been paid in full;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(ivv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the BorrowerBorrower and each other jurisdiction in which the failure to so qualify and be in good standing would have or would reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and respects, (C) since September 30, 20202009, there shall have been no material adverse change that has had or could be reasonably expected to have a Material Adverse Effect, (D) there are no actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or, to the knowledge of the Borrower, threatened against the Borrower, any of its Subsidiaries or any of its properties which would have or be reasonably expected to have a Material Adverse Effect and (E) except as would not result or be reasonably expected to result in a Material Adverse Effect: (a) each of the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as Subsidiaries and all operations at such properties are in compliance in all material respects with all applicable Environmental Laws, (b) there is no violation of any Environmental Law with respect to the properties or the businesses operated by the Borrower or its Subsidiaries, and (c) there are no conditions relating to the businesses or properties that would reasonably be expected to give rise to a wholematerial liability under any applicable Environmental Laws;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiiix) [Reserved.];certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing; and
(ixx) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31June 30, 2020 2010, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries subsidiaries for the fiscal year years ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2007, 2008, and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers2009.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Sole Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary a Responsible Officer of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(viv) a favorable written opinion of inside or outside Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and such local counsel opinions as the Administrative Agent may require, in each case addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the Term Loans and any initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case, such representations and warranties shall be true and correct in all respects) and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiivii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixviii) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter each Fiscal Quarter ending on after December 31, 2020 2017 and at least 45 days prior to the Closing Date, (B) the audited consolidated and unaudited consolidating financial statements for the Borrower and its Subsidiaries for each of the fiscal year Fiscal Years ending September 30December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2015, December 31, 2016 and Exchange Commission prior to the date hereof); December 31, 2017 and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Conditions to Effectiveness. The obligations of the Lenders to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is are satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees payable to the Administrative Agent, any Lender or any Arranger on or prior to the Effective Date and, to the extent invoiced at least one (1) Business Day before the Effective Date (except as reasonably agreed by the Borrower), all other fees, expenses and other amounts due and payable under the Loan Documents on or prior to the Closing Effective Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arrangers and their respective Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any other agreement with the Administrative Agent or the Joint Lead Arrangersany Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), each Loan Party attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party; provided, in the case of the Borrower, such certificate may certify that there has been no change to the limited liability company agreement or to the name and title of each officer of the Borrower executing the Credit Loan Documents;, in each case since those delivered pursuant to Section 3.1(a)(ii) on the Signing Date.
(ivii) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party (other than the Borrower, which may certify that there has been no change since those delivered pursuant to Section 3.1(a)(iii) on the Signing Date), together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party;
(viii) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Effective Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower Loan Parties set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), except to the extent any representation or warranty relates to a specified date, in which case such representation or warranty shall be accurate as of such date, and (Cz) since September June 30, 20202025, there shall have been no material adverse change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) a solvency certificate from a Responsible Officer of the Borrower substantially in the businessform attached hereto as Exhibit C‑2;
(v) a customary favorable written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, condition LLP, counsel to the Loan Parties;
(financial vi) certified copies of all governmental and material third party consents, approvals, authorizations, registrations and filings and orders (other than those (A) routinely obtained in the ordinary course of business or otherwiseafter the closing of sales or transfers of assets, (B) filings necessary to perfect the Liens created under the Loan Documents or (C) that, if not made or obtained, would not cause a Default hereunder and could not reasonably be expected to have a Material Adverse Effect) required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Revolving Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(vii) each Collateral Document set forth on Schedule 1.1B required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, as applicable, together with:
(A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on assets of the Borrower and each Subsidiary Guarantor that is party to the Security Agreement, covering the Collateral described in the Security Agreement; and
(B) evidence that all other actions, recordings and filings required by the Collateral Documents as of the Effective Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (subject to Schedule 5.20 attached hereto) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower providing authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent shall be reasonably satisfactory to the Administrative Agent);
(viii) copies of duly executed payoff letters for any existing Indebtedness not permitted under Section 7.3 (including the Revolver Refinancing but excluding the TLB Paydown), operations, liabilities together with (contingent A) UCC 3 or otherwise), properties or prospects other appropriate termination statements releasing all related liens upon any of the personal property of the Borrower and its subsidiaries taken as a whole;
Subsidiaries, (viiB) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing cancellations and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses releases releasing all related liens upon any of the proceeds hereof;
Real Property of the Borrower and its Subsidiaries, and (viiiC) [Reserved.]any other releases, terminations or other documents reasonably required by the Administrative Agent;
(ix) true, complete and correct copies of (A) the quarterly financial statements as certified by a Responsible Officer of the Borrower and its Subsidiaries on a consolidated basis for Borrower) of the fiscal quarter ending on December 31executed indenture evidencing the issuance of the Permitted 2025 Notes and, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof)extent outstanding, the Term Amendment, in each case in form and substance reasonably acceptable to the Administrative Agent; and
(x) such copies of certificates of insurance issued on behalf of the insurers of the Loan Parties, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Loan Parties; and
(xi) each other documentsdocument, certificates or certificate and information as the Joint Lead Arrangers may Administrative Agent shall have reasonably request, all requested.
(c) The Revolver Refinancing shall have been consummated.
(d) The Permitted 2025 Notes shall have been issued substantially concurrently with the Effective Date pursuant to documentation in form and substance reasonably satisfactory to the Joint Lead Arrangers.
Administrative Agent, and all of the proceeds thereof shall have been used or shall be used substantially concurrently on the Effective Date to repay the obligations under the Term Credit Agreement (c) such payment, the “TLB Paydown”). To the extent requested by the Administrative Agent obligations under the Term Credit Agreement have been paid in writing not less than five full in such TLB Paydown (5) Business Days prior to the Closing Dateincluding if any one Term Credit Agreement has been paid in full), the Administrative Agent shall have receivedreceived payoff letter(s) as to the applicable Term Credit Agreement and all other related releases and terminations of the type described in Section 3.2(b)(viii) above.
(e) In the event any loans under the Term Credit Agreement are outstanding on the Effective Date after giving effect to the TLB Paydown, not later (i) the Administrative Agent shall have received a true, correct and complete copy of an amendment, amendment and restatement or refinancing of the Term Credit Agreement (the “Term Amendment”; the Term Credit Agreement as so amended, amended and restated or refinanced, the “Effective Date Term Credit Agreement”), which shall be in form and substance reasonably satisfactory to the Administrative Agent and (ii) the Loan Parties, the Administrative Agent, the Collateral Agent, and the agent for the Effective Date Term Credit Agreement shall have entered into a Pari Passu Intercreditor Agreement in form and substance satisfactory to the Administrative Agent.
(f) All representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (other than two those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of the Effective Date, except to the extent any representation or warranty relates to a specified date, in which case such representation or warranty shall be accurate as of such date.
(2g) calendar days The Effective Date shall have occurred by December 31, 2025. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Closing Date, all documentation proposed Effective Date specifying its objection thereto. After the Signing Date and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing occurrence of the Effective Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation may terminate this Agreement by written notice to the BorrowerAdministrative Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers Lenders shall have received the payment of all fees fees, expenses and other amounts earned, due and payable on or prior to the Closing Date, including including, without limitation, and to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent) outside counsel), in each case, required to be reimbursed or paid by the Borrower hereunder, hereunder or under any other Credit Loan Document (including, for the avoidance of doubt, the Fee Letters); provided that this clause (a) shall be deemed satisfied on the Closing Date by the delivery of a Notice of Borrowing on or prior to the Closing Date that authorizes the disbursement of the proceeds of the Term Loans on the Funding Date to pay such fees, expenses and under any agreement with the Administrative Agent or the Joint Lead Arrangersother amounts.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent and Required Lenders:
(i) a counterpart of this Agreement Agreement, signed by or on behalf of each party hereto hereto, or written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed signatures to, and true, correct and complete copies of, each other Loan Document (Aas applicable) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior related to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party, substantially in the form of Exhibit 3.1(b)(iii)) attached hereto, attaching and certifying copies of (x) its bylaws bylaws, limited liability company agreement, declaration of sole member or partnership agreement, as applicable, or equivalent thereof, (y) its articles or certificate of incorporation, certificate of formation, articles of organization or certificate of partnership, as applicable, or equivalent thereof and of (z) the resolutions of its boards Board of directorsDirectors, shareholders (if required) or comparable authorizations, authorizing the execution, delivery and performance of the Credit Documents Loan Document(s) to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Document(s) to which it is a party;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with (A) certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of each Loan Party and (B) with respect to RRC, a certificate of good standing from the BorrowerRegistrar of Companies and a letter of good standing from the Cayman Islands Monetary Authority, in each case, issued on the Closing Date or as reasonably close to the Closing Date as possible;
(v) a favorable written opinion opinions of inside or outside ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, as applicable, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or and the Required Lenders shall reasonably requestrequest (which opinions shall expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders);
(vi) a certificate certificate, substantially in the form of Exhibit 3.1(b)(vi)) attached hereto, dated as of the Closing Date Date, and signed by a Financial OfficerResponsible Officer of the Borrower, certifying that immediately after giving effect to consummation of the transactions contemplated to occur on the Closing Date, (A) no Default or Event of Default existsexists or shall result therefrom, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by “Material Adverse Effect” or other materiality, which representations and warranties shall be true and correct in all respects), (C) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in which has had or would reasonably be expected to have a Material Adverse Effect and (D) the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects Liquidity of the Borrower and its subsidiaries taken as a wholethe other Loan Parties shall be no less than $200,000,000;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof[reserved];
(viii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Material Agreement of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated hereby or thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Term Loans shall be ongoing;
(ix) copies of [reserved];
(Ax) the quarterly financial statements [reserved];
(xi) [reserved];
(xii) [reserved];
(xiii) [reserved];
(xiv) [reserved];
(xv) a certificate, dated as of the Borrower Closing Date, and its Subsidiaries on signed by a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by Responsible Officer of the Borrower’s filings with , confirming that the Securities Loan Parties and Exchange Commission prior their Subsidiaries, taken as a whole, are Solvent, immediately after giving effect to the date hereof)consummation of the transactions contemplated to occur on the Closing Date;
(xvi) [reserved];
(xvii) [reserved]; and
(xxviii) delivery of such other documents, certificates certificates, information or information legal opinions as the Joint Lead Arrangers may Administrative Agent or any Lender shall have reasonably request, all in form and substance reasonably satisfactory requested prior to the Joint Lead ArrangersClosing Date.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to The BlackRock Lenders as of the Closing Date, the Administrative Agent Date (or one or more of their designated affiliates or other designees) shall have received, not later than two (2) calendar days prior to received executed counterparts of the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Board Observer Side Letter.
(d) At least five The Lenders (5or one or more of their designated affiliates or other designees) days prior shall have received executed counterparts of the Tranche 1 Warrants.
(e) The Administrative Agent shall have received evidence satisfactory to the Closing DateAdministrative Agent that the Cayman Islands Monetary Authority has approved the Borrower’s entry into the Loan Documents. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, upon the express release of their signatures, the Administrative Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerAdministrative Agent or such Lender.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all reasonable and documented out-of-pocket expenses of the Administrative Agent, the Lead Arrangers and their Affiliates (including reasonable and documented fees, charges and disbursements of one primary counsel to the Administrative Agent, one local counsel in each applicable jurisdiction and any special regulatory counsel) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers, in each case, to the extent that a detailed invoice is delivered to the Borrower at least two (2) Business Days prior to the Closing Date.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of each Loan Party, or in the Borrower case of the Borrower, the Secretary or Assistant Secretary of the GP LLC or the REIT Guarantor, in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws and (A) such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, certified as of a recent date by the Secretary of State of the jurisdiction of organization of such Loan Party; (B) such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable; (C) the resolutions of its boards such Loan Party’s board of directors, managers, members, general partner or other equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party, (D) certificates of good standing or existence, as applicable, from the Secretary of State or other applicable governmental authority of the jurisdiction of incorporation or organization of such Loan Party, and certifying (E) a certificate of incumbency containing the name, title and true signature of each officer of such Loan Party (or, in the Borrower executing the Credit Documents;
(iv) certified copies of the articles or certificate of incorporation case of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization sole member of the Borrowergeneral partner of such Loan Party) executing the Loan Documents to which such Loan Party is a party;
(viii) a favorable written opinion opinions of inside or outside (A) O’Melveny & ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties; and (B) DLA Piper LLC, Maryland counsel to the Loan Parties, and (C) Albright, Stoddard, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Nevada counsel to the Loan Parties, each addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viiv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(iv), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the transactions contemplated hereby, (A) no Default or Event of Default existshas occurred and is continuing on the Closing Date, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects, unless such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), (C) since September 30, 20202018, there has been no change which has had or could reasonably be expected to have a Material Adverse Effect and (D) the condition set forth in clauses (b)(vi) and (b)(vii) below has been satisfied;
(v) all material consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Material Indebtedness of any Loan Party, in each case, as of the Closing Date, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby shall have been obtained and shall be in full force and effect and all applicable waiting periods shall have expired, and no material adverse change in investigation or inquiry by any governmental authority regarding the business, condition Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(vi) copies of financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of projections for the Borrower REIT Guarantor and its subsidiaries taken as Subsidiaries on a wholequarterly basis for the Fiscal Year ending December 31, 2019 and annually thereafter through December 31, 2023;
(vii) if a Borrowing will be made on the Closing Date, a duly completed and executed Notice Compliance Certificate, including calculations of Borrowing the financial covenants set forth in Article VI hereof as of December 31, 2018, calculated on a pro forma basis after giving effect to the transactions contemplated hereby as if the same had occurred as of the first day of the four (4) Fiscal Quarter period ending on December 31, 2018 (and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofin reasonable detail such calculations);
(viii) [Reserved.]a certificate, dated the Closing Date and signed by the chief financial officer of the REIT Guarantor a confirming that after giving effect to the execution and delivery of the Loan Documents and the consummation of the transactions contemplated hereby, the REIT Guarantor and its Subsidiaries, on a consolidated basis, are Solvent;
(ix) copies of (A) the quarterly financial statements UCC, tax and judgment lien search reports in all necessary jurisdictions of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Loan Parties, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied as requested by the Borrower’s filings Administrative Agent, indicating that there are no existing Liens with the Securities and Exchange Commission prior respect to the date hereof); andLoan Parties other than Permitted Encumbrances, other Liens permitted under Section 7.2 and Liens to be released on the Closing Date;
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
at least three (c3) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower and each other Loan Party that the Administrative Agent or any Lender reasonably believes determines is required by regulatory authorities under applicable “know-your-know your customer” ”, and anti-money laundering rules and regulations, including including, without limitation the Patriot Act Act, to the extent reasonably requested by the Administrative Agent at least ten (as defined below).
10) days before the Closing Date. At least three (d3) At days prior to the Closing Date, the Borrower shall deliver to each Lender who has requested at least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver Date a Beneficial Ownership Certification in relation to the Borrower. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2 or otherwise permitted to be satisfied after the Closing Date pursuant to Section 5.16):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Lead Arranger and their Affiliates (including reasonable fees, charges and disbursements of one outside counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(viv) a favorable written opinion opinions of inside or outside ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and Albright, Stoddard, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Nevada counsel to the Loan Parties, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the Term Loans and any initial Revolving Borrowing, (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and correct, (C) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change which has had or could reasonably be expected to have a Material Adverse Effect and (D) the conditions set forth in the business, condition clauses (financial or otherwise), operations, liabilities c) and (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholed) below have been satisfied;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Revolving Borrowing;
(vii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ix) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated and consolidating basis for the fiscal quarter ending on December Fiscal Quarter ended March 31, 2020 2011, including the related statements of income and cash flows, (B) the audited consolidated and unaudited consolidating financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Years ended December 31, 2008, December 31, 2009 and December 31, 2010, including in each case the related statements of income, shareholders’ equity and cash flows, and (C) financial projections on a quarterly basis for the Fiscal Year ending September 30December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2011 and Exchange Commission prior to the date hereof); andannually thereafter through December 31, 2016;
(x) a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of March 31, 2011, calculated on a pro forma basis as if the Term Loans and any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations);
(xi) a certificate, dated the Closing Date and signed by the chief financial officer of the Borrower and by the treasurer of each other documentsLoan Party, certificates or information as the Joint Lead Arrangers may reasonably request, all in form confirming that each Loan Party is Solvent before and substance reasonably satisfactory after giving effect to the Joint Lead Arrangers.funding of the Term Loans and any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(cxii) To the extent Guaranty and Security Agreement, duly executed by the Borrower and each of its Domestic Subsidiaries (other than the Excluded Subsidiaries), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in writing not less order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than five (5) Business Days prior Permitted Encumbrances and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries (other than the Excluded Subsidiaries) owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 66% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable); (F) stock or membership interest powers or other appropriate instruments of transfer executed in blank; and (G) a master intercompany promissory note duly executed by the Loan Parties;
(xiii) Reserved;
(xiv) Negative Pledges covering all Real Estate owned or leased by the Loan Parties (other than any Real Estate pledged by any Subsidiary to secure the Existing HUD Note or the ▇▇▇▇▇▇▇ Notes), duly executed by the applicable Loan Party, together with evidence that such Negative Pledges have been, or will promptly after the Closing Date be, recorded in all places to the extent necessary or desirable, in the sole judgment of the Administrative Agent, to enforce a negative pledge against such Real Estate in favor of the Administrative Agent for the benefit of the Secured Parties (or in favor of such other trustee as may be required or desired under local law);
(xv) with respect to any Real Estate that is leased by the Loan Parties, a copy of the underlying lease, as applicable, and a Collateral Access Agreement from the landlord of such leased property, which Collateral Access Agreement shall have received, not later than two (2) calendar days prior be reasonably satisfactory in form and substance to the Administrative Agent; provided that, with respect to any location other than the headquarters location or a location leased from the Borrower or any of its Subsidiaries, this condition shall be deemed to be satisfied if such Loan Party uses its commercially reasonable efforts to deliver such Collateral Access Agreement (whether or not any such Collateral Access Agreement is delivered);
(xvi) copies of duly executed payoff letters, in form and substance satisfactory to the Administrative Agent, executed by each of the Existing Lenders or the administrative agent thereof, together with (a) UCC-3 or other appropriate termination statements, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the personal property of the Borrower and its Subsidiaries, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the Real Property of the Borrower and its Subsidiaries, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of Indebtedness owed to the Existing Lenders;
(xvii) certified copies of all Material Agreements; and
(xviii) certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be, together with a lender’s loss payable endorsement in form and substance satisfactory to the Administrative Agent.
(c) The Leverage Ratio as of the Closing Date, all documentation Date is not greater than 2.50:1.00 (calculating Consolidated Total Net Debt on a pro forma basis giving effect to the Term Loans and other information any initial Revolving Borrowing and Consolidated EBITDA with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulationsfour consecutive Fiscal Quarters ending on March 31, including without limitation the Patriot Act (as defined below2011).
(d) At least five (5) days The Revolving Credit Exposure will not exceed $35,000,000 after giving effect to any initial Revolving Borrowing. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Ensign Group, Inc)
Conditions to Effectiveness. The obligations Section 2.01 of this Agreement shall become effective on and as of the Lenders to make Loans hereunder shall not become effective until first date (the date “Effective Date”) on which MSB shall have received, on or before the Effective Date, the following, each of the following conditions is satisfied dated such day (or waived unless otherwise specified), in accordance with Section 9.2).form and substance satisfactory to MSB:
(a) The Administrative Agent Certified copies of the resolutions of the Board of Managers of the Borrower approving this Agreement and the Joint Lead Arrangers shall have received transactions contemplated hereby and thereby, and of all fees documents evidencing other necessary limited liability company action and governmental and other amounts due third party approvals and payable on or prior consents, if any, with respect to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangersthis Agreement.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart A copy of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrower;
, dated reasonably near the Effective Date, certifying (vi) as to a favorable written opinion true and correct copy of inside or outside counsel to the Borrower, addressed to certificate of formation of the Administrative Agent Borrower and each of the Lenders, amendment thereto on file in such Secretary’s office and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viii) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event such amendments are the only amendments to the Borrower’s certificate of Default existsformation on file in such Secretary’s office, (B) all representations and warranties of the Borrower set forth in has paid all franchise taxes to the Credit Documents are true and correct in all material respects date of such certificate and (C) since September 30the Borrower is duly formed and in good standing or presently subsisting under the laws of the State of the jurisdiction of its organization.
(c) A certificate of the Secretary or any Assistant Secretary of the Borrower, 2020, there dated the Effective Date (the statements made in which certificate shall have been no material adverse change in be true on and as of the business, condition (financial or otherwiseEffective Date), operations, liabilities certifying as to (contingent or otherwise), properties or prospects i) the absence of any amendments to the certificate of formation of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on since the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses date of the proceeds hereof;
Secretary of State’s certificate referred to in Section 3.01(b), (viiiii) [Reserved.];
(ix) copies a true and correct copy of (A) the quarterly financial statements limited liability company agreement of the Borrower as in effect on the date on which the resolutions referred to in Section 3.01(a) were adopted and on the Effective Date, (iii) the due organization and good standing or valid existence of the Borrower as a limited liability company organized under the laws of the jurisdiction of its Subsidiaries on a consolidated basis organization, and the absence of any proceeding for the fiscal quarter ending on December 31dissolution or liquidation of the Borrower, 2020 and (Biv) the audited consolidated financial statements for names and true signatures of the officers of the Borrower authorized to sign this Agreement.
(d) A certificate of the Borrower signed on behalf of the Borrower by its President, a Vice President, Treasurer or Assistant Treasurer, dated on the Effective Date (the statements made in which certificate shall be true on and its Subsidiaries for as of the fiscal year ending September 30Effective Date), 2020 certifying as to (it being agreed i) the truth of the representations and warranties contained in Section 4.01 of this Agreement as though made on and as of the Effective Date and (ii) the absence of any event occurring and continuing that this clause constitutes a Default.
(ixe) is satisfied by A favorable opinion of in-house counsel of the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead ArrangersMSB.
(cf) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing DateA favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation counsel to the Borrower, in form and substance reasonably satisfactory to MSB.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2).5
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or Truist Securities (including the Joint Lead ArrangersFee Letter).
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed Notes payable to each Lender requesting a note (A) including the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and feesSwingline Lender), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) the Subsidiary Guaranty Agreement duly executed by each Subsidiary Loan Party;
(iv) the Security Agreement duly executed by the Borrower and each Subsidiary Loan Party;
(v) the Pledge Agreement duly executed by the Borrower and each Subsidiary Loan Party;
(vi) copies of duly executed payoff letters, in form and substance satisfactory to Administrative Agent, executed by each holder of existing Indebtedness or the agent thereof, and a Perfection Certificate (as defined in the Security Agreement) with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower; together with (a) the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons and in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property or do business, together with copies of the financing statements (or similar documents) disclosed by such search, (b) UCC-3 or other appropriate termination statements, in form and substance satisfactory to Administrative Agent, releasing all liens of such holders or agent upon any of the personal property of the Borrower and its Subsidiaries and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of such Indebtedness;
(vii) Reserved;
(viii) a certificate of the Secretary or Assistant Secretary of each Loan Party in form and substance acceptable to the Borrower in the form of Exhibit 3.1(b)(iii)Administrative Agent, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit Documents;Loan Documents to which it is a party; ______________________ 5 Conditions set forth in Section 3.1 were satisfied, and the Closing Date occurred, on November 8, 2012.
(ivix) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party;
(vx) a Reserved;
(xi) favorable written opinion of inside or outside ▇▇▇▇▇ ▇▇▇▇▇▇▇ US LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vixii) a certificate certificate, in form and substance acceptable to the form of Exhibit 3.1(b)(vi)Administrative Agent, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (or, if qualified by materiality, in all respects) and (Cz) since September 30December 31, 20202011, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viixiii) if a Borrowing will with respect to any Loan to be made funded on the Closing Date, if any, a duly executed Notice of Borrowing and Borrowing;
(xiv) with respect to any Loan to be funded on the Closing Date, if any, a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofof the Loans to be disbursed on the Closing Date;
(viiixv) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery and performance of the Loan Documents by each Loan Party, and the validity and enforceability of the Loan Documents against each Loan Party or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Loans or any transaction being financed with the proceeds thereof shall be ongoing;
(ixxvi) Reserved;
(xvii) copies of the consolidated and consolidating balance sheets, income statements, cash flows and operating budget of the Borrower setting forth projections for the five Fiscal Years next succeeding the Closing Date, and setting forth in reasonable detail the assumptions underlying such projections;
(xviii) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31September 30, 2020 2012, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Years ending December 31, 2008, December 31, 2009, December 31, 2010, and December 31, 2011;
(xix) a duly completed and executed Compliance Certificate of the Borrower, including pro forma calculations of the financial covenants set forth in Article 6 (other than Section 6.3) hereof as of September 30, 2020 2012;
(it being agreed that this clause (ixxx) is satisfied a copy of, or a certificate as to coverage under, the insurance policies required by the Borrowerapplicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s filings with loss payable endorsement and to name the Securities Administrative Agent as additional insured, in form and Exchange Commission prior substance satisfactory to the date hereof)Administrative Agent;
(xxi) Reserved; and
(xxxii) such other documents, certificates or information as the Joint Lead Arrangers Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead ArrangersAdministrative Agent or the Required Lenders.
(c) To The Administrative Agent shall have received (i) to the extent required by the Pledge Agreement, the certificates representing the shares of Capital Stock pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the Borrower or the applicable Subsidiary Loan Party, as pledgor; (ii) to the extent required by the Security Agreement, the certificates representing the shares of Capital Stock pledged 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 and (iii) to the extent required by the Security Agreement or the Pledge Agreement, each promissory note pledged to the Administrative Agent pursuant to the Pledge Agreement and the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank satisfactory to the Administrative Agent) by the pledgor thereof.
(d) Each document (including, without limitation, any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in writing not less than five (5) Business Days prior order to the Closing Date, create in favor of the Administrative Agent shall have receivedAgent, not later for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required Liens permitted by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulationsSection 7.2), including without limitation the Patriot Act (as defined below)shall be in proper form for filing, registration or recordation.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Conditions to Effectiveness. The obligations of the --------------------------- Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).. ------------
(a) The On the Funding Date, the Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable (other than those previously paid on or prior to the Closing Execution Date), including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Equitable Securities Corporation, as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) on or prior to the Funding Date, a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days on or prior to the Closing Funding Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementduly executed Notes payable to such Lender;
(iii) on or prior to the Funding Date, a duly executed Subsidiary Guaranty Agreement and Indemnity and Contribution Agreement from each Subsidiary Loan Party ;
(iv) on or prior to the Execution Date, a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)Borrower, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) on or prior to the Execution Date, certified copies of the articles or certificate of incorporation or other charter documents of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the BorrowerBorrower and each other jurisdiction where the Borrower has its principal place of business;
(vvi) on or prior to the Funding Date, a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, substantially in the form attached hereto as Exhibit G-1 hereof, and covering such matters relating a favorable written ----------- opinion of the general counsel of the Loan Parties addressed to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or and each of the Required Lenders shall reasonably request;
(vi) a certificate Lenders, substantially in the form of attached hereto as Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof)G-2; and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.-----------
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint SunTrust Capital Markets, Inc., as Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender;
(iii) duly executed Subsidiary Guarantee Agreements and Indemnity and Contribution Agreements; (iv) duly executed Security Documents, all lien searches and evidence of perfection of the liens evidenced by the Security Documents;
(v) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in of Section 3.2;
(ix) insurance certificates evidencing the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects existing insurance coverage of the Borrower and its subsidiaries taken as a wholeSubsidiaries;
(viix) if a Borrowing will be made on the Closing Date, a duly executed Notice Notices of Borrowing and Borrowing, if applicable;
(xi) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (American Healthways Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.211.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses for which invoices have been presented and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent and its Affiliates (including reasonable documented fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as a Joint Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission e-mail of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws Organizational Documents, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered Organizational Documents of the Borrower, together with certificates of good standing or existenceexistence or the equivalent thereof, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization (or other equivalent Governmental Authority) of the Borrower;
(viv) a favorable customary written opinion opinions of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of any initial Loans, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition which has had or would reasonably be expected to have a Material Adverse Effect;
(financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects vi) a duly executed Notice of the Borrower and its subsidiaries taken as a wholeBorrowing;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];certified copies of all consents, approvals, authorizations, registrations, filings and orders, and evidence of the payment of any filing fees or other similar expenses, in each case required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of the Borrower or any Lender, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments shall be ongoing, or a certificate, dated the Closing Date and signed by a Responsible Officer, certifying that no such consents, approvals, authorizations, registrations, filings, orders or fee payments are required; and
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than at least five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to about the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities the Lenders under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days Act. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, or accepted or been 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness. The obligations This Amendment shall become effective on and as of the Lenders to make Loans hereunder shall not become effective until the date first Business Day occurring on or before December 11, 2012 on which each of the following conditions is precedent shall have been satisfied (or waived in accordance with Section 9.2).such date, the “First Amendment Date”):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid receipt by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) of counterparts of this Amendment executed by the Borrower, Holdings and the Required Lenders (each of which shall have received be originals, or facsimiles or “.pdf” files (followed promptly by originals)).
(b) The receipt by the followingAdministrative Agent (or its counsel) of a Consent of Guarantor, in substantially the form attached as Exhibit A hereto, executed by each Guarantor (each of which shall be originals, or facsimiles or “.pdf” files (followed promptly by originals)).
(c) The receipt by the Administrative Agent (or its counsel) of a certificate signed by a duly authorized officer of the Borrower stating that:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all The representations and warranties of the Borrower set forth contained in the Credit Documents Section 3 hereof are true and correct in all material respects on and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects as of the Borrower and its subsidiaries taken date of such certificate as a whole;
(vii) if a Borrowing will be though made on the Closing Dateand as of such date (other than any such representations or warranties that, by their terms, refer to a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to date other than the date hereofof such certificate); and
(xii) such other documentsNo Default or Event of Default has occurred and is continuing, certificates or information as would result from the Joint Lead Arrangers may reasonably requestexecution and delivery of this Amendment, all in form and substance reasonably satisfactory to or from the Joint Lead Arrangers.
(c) To consummation of the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)related transactions.
(d) At least five All costs, fees (5including any fees separately agreed in writing), expenses (including without limitation legal fees and expenses) days and other compensation contemplated by Section 5 or by the Credit Agreement, payable to the Administrative Agent (including on behalf of the Lenders), shall have been paid to the extent due (and, in the case of expenses, invoiced) and required to be paid on the First Amendment Date shall have been paid.
(e) The Borrower shall have paid to the Administrative Agent on or prior to the Closing First Amendment Date, for the account of each Lender (other than any Defaulting Lender) that has unconditionally and irrevocably returned an executed signature page to this Amendment to the extent Administrative Agent (or its counsel) at or prior 4:00 p.m. (New York City time) on December 7, 2012 (the Borrower qualifies “Consent Deadline”) consenting to the amendments set forth in Section 1 hereof, an amendment fee (the “Amendment Fee”) in an amount equal to (i) if, as a of the First Amendment Date, (x) the Borrower’s public corporate credit rating from S&P is at least “legal entity customerB” under and (y) the Beneficial Ownership RegulationBorrower’s public corporate family rating from ▇▇▇▇▇’▇ is at least “B2”, 0.15% of the sum of the aggregate principal amount of all of the Loans and Commitments of such Lender outstanding or in effect, as applicable, as of the Consent Deadline, or (ii) if, as of the First Amendment Date, (x) the Borrower’s public corporate credit rating from S&P is less than “B” and/or (y) the Borrower’s public corporate family rating from ▇▇▇▇▇’▇ is less than “B2”, 0.25% of the sum of the aggregate principal amount of all of the Loans and Commitments of such Lender outstanding or in effect, as applicable, as of the Consent Deadline (it being understood that the Borrower shall deliver a Beneficial Ownership Certification in relation have no liability to pay any of the BorrowerAmendment Fee if the First Amendment Date does not occur).
Appears in 1 contract
Conditions to Effectiveness. The obligations effectiveness of this Agreement, as well as the obligation of the Lenders Banks to make the initial Loans hereunder and of the Agent to issue Letters of Credit hereunder shall not become effective until be subject to the satisfaction of the conditions precedent, in addition to the applicable conditions precedent set forth in Sections 6.2 and 6.3 below, that the Agent shall have received all of the following, in form and substance satisfactory to the Agent, each duly executed and certified or dated as of the date on which each of this Agreement or such other date as is satisfactory to the following conditions is satisfied (or waived in accordance with Section 9.2).Agent:
(a) The Administrative Agent Notes payable to each Bank executed by a duly authorized officer (or officers) of the Company (or Company and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing DateBorrowing Subsidiary, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangersif applicable).
(b) The Administrative Agent An affirmation of the Pledge Agreement, together with delivery of any certificate evidencing the stock or Ownership Interest of Foreign Subsidiaries pledged thereby and executed assignments separate from certificate (stock powers) for such certificates.
(c) An affirmation of the Guaranties required hereunder, executed by a duly authorized officer of each Subsidiary required to be a Guarantor hereunder.
(d) A certificate or its counsel) shall have received certificates of the following:
Secretary or an Assistant Secretary of each Borrower and each Guarantor, attesting to and attaching (i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” copy of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate corporate resolution of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, Company authorizing the execution, delivery and performance of the Credit Documents Loan Documents, (ii) an incumbency certificate showing the names and certifying titles, and bearing the namesignatures of, title the officers of such Borrower or Guarantor authorized to execute the Loan Documents, and true signature of each officer (iii) a copy of the Organizational Documents of such Borrower executing the Credit Documents;or Guarantor with all amendments thereto.
(ive) A Certificate of Good Standing for the Company and each Guarantor certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from by the Secretary of State or equivalent body in the applicable jurisdiction of the jurisdictions of organization of the Borrower;incorporation.
(vf) a favorable written An opinion of inside or outside counsel to the BorrowerCompany, the Guarantors and any Borrowing Subsidiary, addressed to the Administrative Agent and each of the LendersBanks, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in substantially the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;F.
(viig) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission At least five days prior to the date hereof); and
(x) such other documents, certificates or information as if the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower Company shall deliver have delivered a Beneficial Ownership Certification in relation to the BorrowerCompany.
(h) [Intentionally Omitted.]
(i) The Agent shall have received written evidence from the Company and each Guarantor affirming their rights, duties and obligations under the Intercreditor Agreement.
(j) Payment of all fees and expenses due and payable as of the effectiveness of this Agreement under or in connection with the Fee Letters upon the effectiveness of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Graco Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender;
(iii) evidence satisfactory to Administrative Agent that the Existing Credit Agreement has been terminated and all amounts owing to the Lenders thereunder have been paid in full;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(ivv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the BorrowerBorrower and each other jurisdiction in which the failure to so qualify and be in good standing would have or would reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and respects, (C) since September June 30, 20202006, there shall have been no material adverse change that has had or could be reasonably expected to have a Material Adverse Effect, (D) there are no actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or, to the knowledge of the Borrower, threatened against the Borrower, any of its Subsidiaries or any of its properties which would have or be reasonably expected to have a Material Adverse Effect and (E) except as would not result or be reasonably expected to result in a Material Adverse Effect: (a) each of the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as and all operations at such properties are in compliance in all material respects with all applicable Environmental Laws, (b) there is no violation of any Environmental Law with respect to the properties or the businesses operated by the Borrower or its Subsidiaries, and (c) there are no conditions relating to the businesses or properties that would reasonably be expected to give rise to a wholematerial liability under any applicable Environmental Laws;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiiix) [Reserved.];certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing; and
(ixx) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31June 30, 2020 2006, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries subsidiaries for the fiscal year Fiscal Years ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2003, 2004 and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers2005.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The amendment and restatement of the Existing Credit Agreement and the obligations of the any Lenders party hereto to make Loans hereunder shall not become effective until or continue any Credit Extensions pursuant to the date on which each terms of this Agreement are subject to satisfaction of the following conditions is satisfied (or waived in accordance with Section 9.2).precedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party unless otherwise specified, 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 reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Joint Lead Arrangers Administrative Agent, each Lender and the Borrower.
(ii) a Revolving Credit Note executed by the Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note.
(iii) a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note.
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement, the other Loan Documents and the Transaction to which such Loan Party is a party.
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation.
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required.
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 5.02(a) and (b) have received all fees been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and other amounts due (C) that, upon giving effect to the Surgical Business Acquisition on a Pro Forma Basis after giving effect to the Surgical Business Acquisition, (1) the Consolidated Senior Leverage Ratio is less than or equal to 2.5 to 1.0 and payable on (2) the Consolidated Total Leverage Ratio is less than or prior equal to 4.75 to 1.0.
(viii) a copy of a certificate of the Secretary of State of the jurisdiction of organization of each Loan Party, dated reasonably near the Closing Date, including reimbursement certifying (A) as to a true and correct copy of the charter of such Loan Party and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such Loan Party's charter on file in such Secretary's office and (2) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is duly incorporated or payment organized and in good standing or presently subsisting under the laws of all out-of-pocket expenses the State of the jurisdiction of its organization.
(including reasonable feesix) a certificate of each Loan Party, charges signed on behalf of such Loan Party by its President, a Vice President, its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and disbursements as of counsel the Closing Date), certifying as to (A) the absence of any amendments to the charter of such Loan Party since the date of the Secretary of State's certificate referred to in clause (viii) above, (B) a true and correct copy of the bylaws or other organizational documents of such Loan Party as in effect on the date on which the resolutions referred to in clause (iv) above were adopted and on the Closing Date, (C) the due organization and good standing or valid existence of such Loan Party as an organization organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (E) the absence of any event occurring and continuing, or resulting from the initial Credit Extension, if a Credit Extension is being requested on the date of effectiveness hereof, that constitutes a Default.
(x) a Loan Notice relating to the initial Credit Extension hereunder, if a Credit Extension is being requested on the date of effectiveness hereof.
(xi) a duly executed Security Agreement and IP Security Agreement, in form and substance reasonably satisfactory to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion of inside or outside legal counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, dated as of the LendersClosing Date, and covering such matters relating in form and substance satisfactory to the BorrowerAdministrative Agent.
(c) Any fees required to be paid on or before the Closing Date shall have been paid in full.
(d) Unless deferred by the Administrative Agent, the Credit Documents and the transactions contemplated therein as Borrower shall have paid all Attorney Costs of the Administrative Agent (including with respect to the Existing Credit Agreement and this Amended and Restated Credit Agreement) to the extent invoiced prior to or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a duly executed Notice final settling of Borrowing accounts between the Borrower and the Administrative Agent).
(e) Perfection and Priority of Liens. Receipt by the Administrative Agent of the following:
(i) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Loan Party, or where a duly executed funds disbursement agreementfiling would need to be made in order to perfect the Administrative Agent's security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than those liens permitted pursuant to Section 8.01;
(ii) such UCC financing statements as are necessary, in the Administrative Agent's discretion, to perfect the security interests in the Collateral;
(iii) all certificates evidencing any certificated Capital Stock pledged to the Administrative Agent pursuant to the Security Agreement, together with a report setting forth duly executed in blank, undated stock powers attached thereto (unless, with respect to the sources and uses pledged Capital Stock of any Foreign Subsidiary, such stock powers are deemed unnecessary by the Administrative Agent in its reasonable discretion under the law of the proceeds hereof;
(viii) [Reserved.];
(ix) copies jurisdiction of (A) the quarterly financial statements incorporation of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereofsuch Person); and
(xiv) searches of ownership of, and Liens on, intellectual property of each Loan Party in the appropriate governmental offices.
(f) Both before and after giving effect to the Transaction, there shall have occurred no Material Adverse Effect.
(g) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect. There shall not (i) be in effect any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any governmental authority or law that makes illegal or enjoins or prevents in any respect the consummation of the Acquisition or the other transactions contemplated by the Purchase Agreement in the United States of America, the United Kingdom, Germany, Italy, Sweden, the Netherlands or Japan or (ii) have been commenced, and be continuing, or threatened in writing any action or proceeding by any governmental authority of the United States of America, the United Kingdom, Germany, Italy, Sweden, the Netherlands or Japan.
(h) The Administrative Agent shall have received reasonably satisfactory evidence that the Surgical Business Acquisition will be consummated prior to June 29, 2004 in compliance with applicable law and regulatory approvals and in accordance with the Acquisition Documents. The purchase price for the Surgical Business Acquisition shall not exceed $450 million in cash. The Acquisition Documents, together with all amendments, modifications, supplements and waivers thereto, shall be in form and substance satisfactory to the Administrative Agent.
(i) The Administrative Agent shall have received (i) a copy, certified by a Responsible Officer of the Borrower as true and complete, of the Purchase Agreement, together with all exhibits and schedules, (ii) a copy, certified by a Responsible Officer of the Borrower as true and complete, of the 2004 Convertible Senior Subordinated Notes Documents (together with all exhibits and schedules thereto) as originally executed and delivered, together with any amendments or modifications to such other documents2004 Convertible Senior Subordinated Notes Documents as of the Closing Date, certificates such 2004 Convertible Senior Subordinated Notes Documents and amendments or information modifications to be acceptable to the Administrative Agent and (iii) a copy, certified by a Responsible Officer of the Borrower as true and complete, of the Joint Lead Arrangers may reasonably requestExisting Convertible Senior Subordinated Notes Documents (together with all exhibits and schedules thereto) as originally executed and delivered, all together with any amendments or modifications to such Existing Convertible Senior Subordinated Notes Documents as of the Closing Date, such Existing Convertible Senior Subordinated Notes Documents and amendments or modifications to be acceptable to the Administrative Agent. The Borrower shall have received gross proceeds from the issuance of the 2004 Convertible Senior Subordinated Notes in an amount of $350,000,000.
(j) The Administrative Agent and the Syndication Agent shall have received in form and substance reasonably satisfactory to each of them of (i) the Joint Lead Arrangers.
(c) To unaudited balance sheet of the extent requested by Surgical Business for the Administrative Agent in writing not less than five (5) Business Days fiscal quarter most recently ended prior to the Closing DateDate and the related statements of income or operations, stockholders' equity and cash flows for the Surgical Business for such fiscal quarter and (ii) pro forma consolidated financial statements as to the Borrower and its Subsidiaries, and forecasts prepared by management of the Borrower, each in form reasonably satisfactory to the Lenders, of balance sheets, income statements and cash flow statements (in the case of forecasts, on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement). Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender;
(iii) evidence satisfactory to Administrative Agent that the Existing Credit Agreement has been terminated and all amounts owing to the Lenders thereunder have been paid in full;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(ivv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the BorrowerBorrower and each other jurisdiction in which the failure to so qualify and be in good standing would have or would reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and respects, (C) since September 30, 20202006, there shall have been no material adverse change that has had or could be reasonably expected to have a Material Adverse Effect, (D) there are no actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or, to the knowledge of the Borrower, threatened against the Borrower, any of its Subsidiaries or any of its properties which would have or be reasonably expected to have a Material Adverse Effect and (E) except as would not result or be reasonably expected to result in a Material Adverse Effect: (a) each of the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as and all operations at such properties are in compliance in all material respects with all applicable Environmental Laws, (b) there is no violation of any Environmental Law with respect to the properties or the businesses operated by the Borrower or its Subsidiaries, and (c) there are no conditions relating to the businesses or properties that would reasonably be expected to give rise to a wholematerial liability under any applicable Environmental Laws;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiiix) [Reserved.];certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing; and
(ixx) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries subsidiaries for the fiscal year Fiscal Years ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2004, 2005 and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers2006.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint SunTrust Capital Markets, Inc., as Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, a duly executed Revolving Credit Note payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Datea duly executed Parent Guarantee Agreement, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Holdings Guarantee Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Subsidiary Guarantee Agreement;
(iiiiv) duly executed Security Documents, together with appropriate stock certificates;
(v) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation or other charter documents of the Borrower, Parent, and Holdings, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of each and each other jurisdiction where the Borrower, Parent, and Holdings are required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;; provided that opinions relating to all Loan Parties with the exception of Parent, Holdings, and Borrower shall be delivered pursuant to the requirements of Section 3.3(b).
(viviii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viiix) if a Borrowing will be made on the Closing Date, a duly executed Notice Notices of Borrowing and Borrowing, if applicable;
(x) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiixi) [Reserved.]certified copies of all consents, approvals, authorizations, registrations, or filings required to be made or obtained by the Borrower and all Guarantors in connection with the Loan Documents and any transaction being financed with the proceeds of the Revolving Credit Commitment as of the Closing Date;
(ixxii) copies if not already in the possession of (A) the quarterly Administrative Agent, the consolidated financial statements of the Borrower Parent for the fiscal year ended 2004, including balance sheets, income and its Subsidiaries on a cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP, and the consolidated basis financial statements of the Parent for the fiscal quarter ending on December 31, 2020 and nine (B9) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year month period ending September 30, 2020 2005;
(it being agreed that this clause xiii) copies of certificates of insurance issued on behalf of insurers of the Borrower and all Guarantors, describing in reasonable detail the types and amounts of insurance (ixproperty and liability) is satisfied maintained by the Borrower’s filings with Borrower and all Guarantors, naming Administrative Agent as additional insured;
(xiv) such other financial information as reasonably required by the Securities and Exchange Commission prior to the date hereof)Administrative Agent; and
(xxv) such other documents, certificates all fees and expenses required hereunder or information as under any letter agreement executed by Borrower in connection with the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead ArrangersLoan Documents.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (United Surgical Partners International Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) duly executed Revolving Credit and Term Notes payable to such Lender and the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Swingline Lender, in each case, only if requested by such Lender at least one (1) Business Days Day prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) copies of duly executed payoff letters, in form and substance satisfactory to Administrative Agent, executed by each of the Existing Lenders or the agent thereof;
(iv) a certificate of the Secretary or Assistant Secretary Secretary of the Borrower General Partner in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, the partnership agreement, or comparable organizational documents and authorizations of the Borrower, authorizing the execution, delivery and performance of the Credit Loan Documents to which the Borrower is a party, and attaching true and correct copies of the TC PipeLines ILP Agreement, the Tuscarora Intermediate Partnership Agreement, and the Northern Border Partnership Agreement;
(v) certified copies of the articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of the Borrower and its General Partner, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of the Borrower and its General Partner, and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation;
(vi) a certificate dated as of the Closing Date and signed by a responsible officer, certifying the name, title and true signature of each officer of the Borrower General Partner executing the Credit DocumentsLoan Documents on behalf of the Borrower to which the Borrower is a party;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(vvii) a favorable written opinion of inside or outside ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the LendersLenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(viii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viiix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(x) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiixi) [Reserved.]a certificate dated as of the Closing Date and signed by a responsible officer, attaching true and correct copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of the Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixxii) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31September 30, 2020 2006, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30Fiscal Years ended 2003, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2004 and Exchange Commission prior to the date hereof)2005; and
(xxiii) such other documentscertificates of insurance issued on behalf of insurers of the Borrower, certificates or information as describing in reasonable detail the Joint Lead Arrangers may reasonably request, all in form types and substance reasonably satisfactory to the Joint Lead Arrangers.
amounts of insurance (cproperty and liability) To the extent requested maintained by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Tc Pipelines Lp)
Conditions to Effectiveness. The obligations effectiveness of this Agreement is subject to the satisfaction, in the sole discretion of the Lenders to make Loans hereunder shall not become effective until the date on which each Administrative Agent, of the following conditions is satisfied (or waived in accordance with Section 9.2).precedent:
(a) The Administrative Agent must receive the following, all of which must be satisfactory in form and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel content to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or in its counsel) shall have received the followingsole discretion:
(i) a counterpart of this This Agreement signed duly executed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;▇▇▇▇▇▇▇▇.
(ii) evidence that A copy of the Custodial Agreement, the Servicing Agreement, any Bailee Agreements (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and feesextent applicable), or will be repaid substantially concurrently with the closing of this Pledge Agreement, the Assignment Agreement Documents and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;Customers Fee Letter, in each case, duly executed by each party thereto.
(iii) a A copy of ▇▇▇▇▇▇▇▇’s certificate of organization, together with all amendments, as certified by the Secretary of State of Delaware, a copy of Borrower’s limited liability company agreement and any other Constituent Documents, together with all amendments, certified by the Secretary or Assistant Secretary other authorized representative of Borrower, and certificates of good standing dated within thirty (30) days of the Borrower in the form date of Exhibit 3.1(b)(iii)this Agreement.
(iv) A copy of a resolution, attaching and certifying copies of its bylaws and consent or approval of the resolutions manager, board of its boards directors or other governing body of directors, Borrower authorizing the execution, delivery and performance of this Agreement and the Credit Documents other Transaction Documents, each Advance Request and certifying all other agreements, instruments or documents to be delivered by Borrower under this Agreement.
(v) A certificate as to the name, title incumbency and true signature of each officer authenticity of the signatures of the officers of Borrower executing this Agreement and the Credit other Transaction Documents;, and of the Authorized Representatives (the Administrative Agent being entitled to rely on that certificate until a new incumbency certificate has been furnished to the Administrative Agent).
(ivvi) certified copies A copy of the articles or BLK Holding’s certificate of incorporation of the Borrowerorganization, together with certificates of good standing or existenceall amendments, as may be available from certified by the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing DateDelaware, a duly executed Notice copy of Borrowing BLK Holding’s limited liability company agreement and a duly executed funds disbursement agreementany other Constituent Documents, together with a report setting forth all amendments, certified by the sources Secretary or other authorized representative of BLK Holding, and uses certificates of good standing dated within thirty (30) days of the proceeds hereof;
(viii) [Reserveddate of this Agreement.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (BlackRock Monticello Debt Real Estate Investment Trust)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make initial Loans hereunder, the obligation of the Issuing Bank to issue any initial Letter of Credit hereunder and the obligation of the Servicer to make Franchisee Loans and to issue Franchisee Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).11.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint MLPF&S, as Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, the duly executed Notes payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this duly executed Subsidiary Guaranty Agreement, Franchisee Facility Guaranty Agreement and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Servicing Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation or formation of the Borrower;such Loan Party; CHAR1\1185130v10
(vvi) a favorable written opinion of inside or outside Hunton & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, and Scarlett May, General Counsel of the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a) and (Cb) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofSection 4.2;
(viii) [Reserved.]duly executed Notices of Borrowing, if applicable;
(ix) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(Ax) evidence satisfactory to the quarterly financial statements Administrative Agent that each of the Existing Credit Agreement and the Franchisee Facility Credit Agreement has been terminated and all interest, fees and principal accrued thereunder through the Closing Date will be paid in full from the initial Revolving Loans under this Agreement;
(xi) a copy of an amendment to the Senior Note Purchase Agreement, certified by a Responsible Officer of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 in form and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior substance satisfactory to the date hereof)Administrative Agent; and
(xxii) such all other documents, certificates or documents and information as the Joint Lead Arrangers may Administrative Agent reasonably requestrequests. Without limiting the generality of the provisions of Section 10.4, all for purposes of determining compliance with the conditions specified in form and substance reasonably this Section 4.1, 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 the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders Lender to make Loans the Term Loan, to make Advances under the Revolving Credit Facility and to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).satisfied:
(a) The Administrative Agent and the Joint Lead Arrangers Lender shall have received all fees and other amounts due and payable on or prior to the Closing Date, including without limitation reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative AgentLender) required to be reimbursed or paid by the Borrower hereunder, hereunder and under any other Credit Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersLoan Document.
(b) The Administrative Agent Lender (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent Lender (which may include telecopy or .pdf other electronic transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Term Loan Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementLender;
(iii) the duly executed Revolving Note payable to the Lender;
(iv) the Subsidiary Guaranty duly executed by the Subsidiary Loan Parties existing on or as of the Closing Date;
(v) the Security Agreement duly executed by Borrower;
(vi) each other Loan Document duly executed by the respective parties thereto;
(vii) a certificate of the Secretary, Assistant Secretary or Assistant Secretary other authorized officer, general partner, member or manager of each Loan Party in form and substance acceptable to the Borrower in the form of Exhibit 3.1(b)(iii)Lender, attaching and certifying copies of its bylaws articles or certificate of incorporation, articles of organization, certificate of limited partnership, bylaws, partnership agreement, limited liability company agreement or operating agreement, or comparable organizational documents and authorizations of the resolutions of its boards each such Person’s board of directors, general partners, members or managers, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer officer, general partner, member or manager of the Borrower each Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivviii) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing standing, status or existence, as may be available from the Secretary of State or other issuing agency of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation, partnership, or limited liability company;
(vix) a favorable written opinion of inside or outside Hill ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the LendersLender, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders Lender shall reasonably request;
(vix) a certificate certificate, in form and substance acceptable to the form of Exhibit 3.1(b)(vi)Lender, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default Condition or Event of Default exists, (By) all representations and warranties of the Borrower Loan Parties set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects date of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Loan Parties described in Section 5.06 hereof, there shall has been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(xi) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of the Loan Parties, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Credit Facilities, any Letters of Credit, or any transaction being financed with the proceeds thereof shall be ongoing;
(xii) if applicable, duly executed payoff letters or other evidence satisfactory to the Lender from lenders under any existing loans or credit facilities of Borrower;
(xiii) Perfection Certificates (as defined in the Security Agreement) with respect to Borrower and each Subsidiary Loan Party dated the Closing Date and duly executed by a Responsible Officer of such Person, and the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, and in the case of the Perfection Certificates, in which the chief executive office of such Person is located and in the other jurisdictions in which such Persons maintain property, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Lender that the Liens indicated in any such financing statement (or similar document) would be permitted by Section 7.02 hereof or have been or will be contemporaneously released or terminated;
(xiv) certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all other material agreements, documents and instruments to which any Loan Party or any of its Subsidiaries on assets are bound;
(xv) a consolidated basis for copy of, or a certificate as to coverage under, the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied insurance policies required by the Borrowerapplicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s filings with loss payable endorsement and to name the Securities and Exchange Commission prior to the date hereof); and
(x) such other documentsLender as additional insured, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead ArrangersLender;
(xvi) Collateral Access Agreements from such landlords of the properties leased by Borrower as the Lender may reasonably require, in form and substance satisfactory to the Lender.
(c) To Lender shall have received (i) the extent requested certificates representing any shares of Capital Stock pledged pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of Borrower and (ii) each promissory note pledged to Lender pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank satisfactory to Lender) by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)pledgor thereof.
(d) At least five Each document (5including, without limitation, any Uniform Commercial Code financing statement) days required by the Security Documents or under law or reasonably requested by the Lender to be filed, registered or recorded in order to create in favor of the Lender a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.02 hereof), shall be in proper form for filing, registration or recordation.
(e) Copies certified to the Closing Date, to satisfaction of Lender of each of the extent fully executed HPI Direct Purchase Agreement and the fully executed HPI Transaction Documents including without limitation copies of fully executed Employment Agreements between the Borrower qualifies as and each of ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III, and a “legal entity customer” under the Beneficial Ownership Regulation, copy of a fully executed Consulting Agreement between the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerand ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).satisfied:
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Credit Party in the a form of Exhibit 3.1(b)(iii)acceptable to Administrative Agent, attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Credit Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Credit Party and each other jurisdiction where such Credit Party is required to be qualified to do business as a foreign corporation;
(viv) a favorable written opinion of inside or outside counsel to the BorrowerCredit Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerCredit Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders);
(viv) a certificate in the a form of Exhibit 3.1(b)(vi)reasonably acceptable to Administrative Agent, dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of any initial Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Credit Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Borrowing;
(vii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]copies of any consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Legal Requirements, or by any Contractual Obligation of any Credit Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby;
(ix) copies of (A) the internally prepared quarterly financial statements of the Borrower Parent and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Fiscal Quarter ended September 30, 2020 2018, and (B) the audited consolidated financial statements for the Borrower Parent and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); andFiscal Year ended 2017;
(x) a duly completed and executed Compliance Certificate signed by a Responsible Officer of Parent, including pro forma calculations of the financial covenants set forth in Section 5.2 hereof as of the Closing Date, and calculated as if any initial Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such other documentscalculations);
(xi) a certificate, certificates or information as dated the Joint Lead Arrangers may reasonably requestClosing Date and signed by the chief financial officer of each Credit Party, all in form confirming that each Credit Party is Solvent before and substance reasonably satisfactory after giving effect to the Joint Lead Arrangers.funding of any initial Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(cxii) To executed counterparts of each of the extent other Loan Documents, together with (A) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Credit Parties, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Closing Date, (B) a Perfection Certificate, duly completed and executed by the Borrower, (C) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Credit Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) and (D) stock or membership interest powers or other appropriate instruments of transfer executed in blank;
(xiii) written confirmation of the termination of the credit facilities previously advanced in favor of Borrower by KeyBank National Association, as agent, and the other lenders party thereto;
(xiv) all documentation and other information required by bank regulatory authorities or reasonably requested by the Administrative Agent or any Lender under or in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under of applicable “know-your-know your customer” and anti-money laundering rules and regulations, Legal Requirements including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Dateand, to the extent the if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to Borrower; and
(xv) all such other documents and materials required by the Borrowerclosing checklist related to this Agreement and prepared by counsel for the Administrative Agent. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, the Administrative Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to Administrative Agent or Lenders for purposes of the closing and initial funding of the Loans unless the Borrower shall have received notice from the Administrative Agent (and the Administrative Agent shall have received notice from such Lender) prior to the proposed Closing Date specifying its objection thereto; provided, however, that such deemed consent, approval, acceptance, or satisfaction shall not in any manner limit the effectiveness of or act as a waiver of any of the representations, warranties, or covenants of the Borrower set forth herein or in any manner limit, restrict, or waive required compliance by Borrower with same.
Appears in 1 contract
Sources: Revolving Credit Agreement (NexPoint Residential Trust, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2 or otherwise permitted to be satisfied after the Closing Date pursuant to Section 5.16):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Lead Arrangers and their Affiliates (including reasonable fees, charges and disbursements of one primary counsel to the Administrative Agent, one local counsel in each applicable jurisdiction and any special regulatory counsel) required to be reimbursed US-DOCS\51545218.9 or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws (A) such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, certified as of a recent date by the Secretary of State of the jurisdiction of organization of such Loan Party, or certifying that there have been no changes to such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, as applicable, certified by the Secretary of State of the jurisdiction of organization of such Loan Party and delivered to the Administrative Agent on the Original Closing Date, the First Amendment and Restatement Date or the date of such Loan Party’s joinder as a Loan Party, as applicable, (B) such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable, or certifying that there have been no changes to such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable, delivered to the Administrative Agent on the Original Closing Date, the First Amendment and Restatement Date or the date of such Loan Party’s joinder as a Loan Party, as applicable, (C) the resolutions of its boards such Loan Party’s board of directors, managers, members, general partner or other equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party, (D) certificates of good standing or existence, as applicable, from the Secretary of State of the jurisdiction of incorporation or organization of such Loan Party and certifying each other jurisdiction where the failure of such Loan Party to be qualified to do business as a foreign company would have a Material Adverse Effect, in each case as of a recent date, and (E) a certificate of incumbency containing the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which such Loan Party is a party;
(iviii) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion opinions of inside or outside Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and Albright, Stoddard, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Nevada counsel to the Loan Parties, in each case, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viiv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(iv), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the Related Transactions, (A) no Default or Event of Default existshas occurred and is continuing on the Closing Date, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (date of the financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects statements of the Borrower described US-DOCS\51545218.9 in Section 4.4(i), there has been no change which has had or could reasonably be expected to have a Material Adverse Effect and its subsidiaries taken as a whole(D) the conditions set forth in clause (b)(vii) below have been satisfied;
(viiv) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with for each Borrowing on the Closing Date;
(vi) a report setting forth the sources and uses of the proceeds hereof;
(viiivii) [Reserved.]all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents, the other Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixviii) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December Fiscal Quarter ended March 31, 2020 2016, including the related statements of income and cash flows, (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30Fiscal Year ended December 31, 2020 2015, including in each case the related statements of income, shareholders’ equity and cash flows, and (it being agreed that this clause C) financial projections on an annual basis through December 31, 2021;
(ix) is satisfied by a duly completed and executed Compliance Certificate, including calculations of the Borrower’s filings with financial covenants set forth in Article VI hereof as of March 31, 2016, calculated on a pro forma basis as if the Securities initial Borrowing(s) had been funded and Exchange Commission prior to the date hereofother Related Transactions had occurred, as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations); and;
(x) such other documentsa certificate, certificates or information as dated the Joint Lead Arrangers may reasonably requestClosing Date and signed by the chief financial officer of the Borrower, all in form confirming that the Borrower is, and substance reasonably satisfactory the Borrower and its Subsidiaries, on a consolidated basis, are, Solvent before and after giving effect to the Joint Lead Arrangers.funding of the initial Borrowing(s) and the consummation of the other Related Transactions contemplated to occur on the Closing Date;
(cxi) To the extent Guaranty and Security Agreement, duly executed by the Borrower and each of its Domestic Subsidiaries (other than the Excluded Subsidiaries), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in writing not less order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than five (5) Business Days prior Permitted Encumbrances and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Administrative Agent Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries (other than the Excluded Subsidiaries) owned directly by any Loan Party; provided that, in the case of Capital Stock of any Foreign Subsidiary that is a CFC and Capital Stock of any Pass-Through Foreign Holdco, US-DOCS\51545218.9 such original certificates shall have receivedbe limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, not later than two as applicable, (2F) calendar stock or membership interest powers or other appropriate instruments of transfer executed in blank and (G) a master intercompany promissory note duly executed by the Borrower and its Subsidiaries;
(xii) at least three (3) days prior to the Closing Date, all documentation and other information with respect to the Borrower and each other Loan Party that the Administrative Agent or any Lender reasonably believes determines is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing DateAct, to the extent reasonably requested by the Borrower qualifies as a “legal entity customer” Administrative Agent at least ten (10) days before the Closing Date; and
(xiii) all Control Account Agreements and Sweep Agreements required under Section 5.11, duly executed by the Beneficial Ownership Regulationapplicable Loan Parties, the Borrower applicable depositary or securities intermediary and the Administrative Agent. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall deliver be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Beneficial Ownership Certification in relation Lender unless the Administrative Agent shall have received notice from such Lender prior to the Borrowerproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees payable to the Administrative Agent, any Lender or any Arranger on or prior to the Closing Date and, to the extent invoiced at least one (1) Business Day before the Closing Date (except as reasonably agreed by the Borrower), all other fees, expenses and other amounts due and payable under the Loan Documents on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arrangers and their respective Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any other agreement with the Administrative Agent or the Joint Lead Arrangersany Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), Holdings and each Loan Party attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower Holdings or such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of Holdings and each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of Holdings and such Loan Party;
(iv) a favorable written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to Holdings and the BorrowerLoan Parties;
(v) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the Transactions, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects respects, except to the extent such representation or warranty is already subject to a materiality qualifier, in which case such representation or warranty shall be true and correct in all respects, and (Cz) since September 30December 31, 20202023, there shall have been no material adverse change in the business, condition which has had or could reasonably be expected to have a Material Adverse Effect;
(financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholevi) [reserved];
(vii) if a Borrowing will be made on the Closing Date, solvency certificate from a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses Responsible Officer of the proceeds hereofBorrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit C‑2;
(viii) each Collateral Document set forth on Schedule 1.1B required to be executed on the Closing Date as indicated on such schedule, duly executed by Parent and each Loan Party thereto, as applicable, together with: [Reserved.reserved]; copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on assets of Holdings, the Borrower and each Subsidiary Guarantor that is party to the Security Agreement, covering the Collateral described in the Security Agreement; [reserved]; and evidence that all other actions, recordings and filings required by the Collateral Documents as of the Closing Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (subject to Schedule 5.20 attached hereto) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower providing authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent shall be reasonably satisfactory to the Administrative Agent);
(ix) copies of (A) the quarterly financial statements of the Borrower a recent Lien and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may judgment search in each jurisdiction reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five with respect to Parent and the Loan Parties;
(5x) [reserved];
(xi) [reserved];
(xii) the Administrative Agent and the Collateral Agent shall have received at least three (3) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, Date all documentation and other information with respect to about the Borrower that and the Administrative Agent reasonably believes is Guarantors required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot USA PATRIOT Act that has been requested by the Administrative Agent in writing at least ten (as defined below).
(d10) At least five (5) days Business Days prior to the Closing Date, to the extent . If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership RegulationRegulation in relation to the Borrower, the Borrower shall deliver a Beneficial Ownership Certification in relation to any Lender that has requested such certification at least five (5) Business Days prior to the Closing Date;
(xiii) true, complete and correct copies (as certified by a Responsible Officer of the Borrower) of executed documents evidencing the Term Credit Agreement, in form and substance reasonably acceptable to the Administrative Agent; and
(xiv) a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set forth in Section 3.1(c) and (d).
(i) All conditions precedent to the availability of the Initial Term Loans shall have been satisfied or waived in accordance therewith and (ii) the Existing Term Credit Agreement shall have been refinanced with the proceeds of the Initial Term Loans.
(d) All fees and interest accrued under the Existing Credit Agreement prior to the effectiveness of this Agreement shall have been paid to the lenders and agents under the Existing Credit Agreement.
(e) All fees and expenses due to the Administrative Agent, the Collateral Agent, the Lead Arrangers and their respective Affiliates required to be paid on the Closing Date and (in the case of expenses) invoiced at least three (3) Business Days before the Closing Date (except as otherwise reasonably agreed by the Borrower) shall have been paid. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 1 contract
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including upfront fees for the Lenders and reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf other electronic transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) duly executed Revolving Credit Notes payable to each Lender and the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Swingline Lender, in each case, only if requested by such Lender at least one (1) Business Days Day prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) [Reserved].
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower General Partner in the form of Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws (x) the bylaws, the partnership agreement, or comparable organizational documents and authorizations of the Borrower and the General Partner and (y) resolutions of its boards the board of directorsdirectors or comparable governing body of the General Partner and the General Partner on behalf of the Borrower, authorizing the execution, delivery and performance of the Credit Loan Documents and certifying by the name, title and true signature of each officer of the Borrower executing the Credit DocumentsBorrower;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of the BorrowerBorrower and the General Partner, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the BorrowerBorrower and the General Partner, and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation;
(vvi) a certificate signed by a Responsible Officer, certifying the name, title and true signature of each officer of the General Partner executing the Loan Documents on behalf of the Borrower to which the Borrower is a party;
(vii) a favorable written legal opinion from ▇▇▇ ▇▇▇▇▇▇, in-house counsel on behalf of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerBorrower and the General Partner, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(viii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Av) all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law or by any Contractual Obligation of the Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby have been obtained , and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing, (w) no Default or Event of Default exists, (Bx) no default or event of default exists in respect of any Material Indebtedness, (y) all representations and warranties of the Borrower set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in which has had or could reasonably be expected to have a Material Adverse Effect; and
(ix) a certificate, dated the business, condition (Closing Date and signed by the chief financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects officer of the General Partner, confirming that the Borrower is Solvent before and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made after giving effect to the transactions contemplated to occur on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersAgent.
(b) The Administrative Agent (or its counsel) shall have received the followingfollowing in form and substance reasonably acceptable to Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements if requested by any Lender, duly executed Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementsuch Lender;
(iii) a Subsidiary Guaranty Agreement and Indemnity and Contribution Agreement duly executed by each Subsidiary which is not a Foreign Subsidiary;
(iv) a duly executed Security Agreement from Borrower granting Administrative Agent a first priority security interest in the Collateral;
(v) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A. counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as in the Administrative Agent or the Required Lenders shall reasonably requestform set forth in Exhibit 3.1(viii);
(viviii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viiix) if certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all other material agreements, documents and instruments to which any Loan Party or any of its assets are bound;
(x) each document (including, without limitation, any Uniform Commercial Code financing statement) required by the Security Agreement or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a Borrowing will be made perfected Lien on the Closing DateCollateral described therein, a prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.2), shall be in proper form for filing, registration or recordation.
(xi) duly executed Notice Notices of Borrowing and Borrowing, if applicable; and
(xii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations amendment and restatement of the Lenders to make Loans hereunder Existing Credit Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Effective Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy facsimile or .pdf form of electronic attachment (e.g., “.pdf” or “.tif”) transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) a duly executed Subsidiary Guarantee Agreement by the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, Domestic Subsidiaries identified as Guarantors on Schedule 4.14 and (B) all amounts outstanding under a duly executed Borrower Guarantee Agreement (with respect to the Existing Credit Agreements have been paid (including, without limitation, principal, interest Hedging Obligations and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” Treasury Management Obligations of the lenders under Subsidiaries of the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementBorrower);
(iii) a duly executed copy of the Intercreditor Agreement in form and substance reasonably satisfactory to the Administrative Agent;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party, substantially in the form of attached hereto as Exhibit 3.1(b)(iii3.1(b)(iv), attaching and certifying copies of its bylaws or operating agreement, as applicable, and of the resolutions of its boards board of directorsdirectors (or equivalent governing body), authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party;
(vvi) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate certificate, dated the Effective Date substantially in the form of attached hereto as Exhibit 3.1(b)(vi), dated the Closing Date 3.1(b)(vii) and signed by a Financial Responsible Officer, (A) confirming compliance with the conditions set forth in Sections 3.2(a), (b) and (c), and (B) certifying that (Ax) all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any applicable laws, or by any contractual obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Transaction Documents or any of the transactions contemplated thereby shall be in full force and effect and all applicable waiting periods shall have expired and (y) no Default known investigation or Event of Default exists, (B) all representations and warranties of inquiry by any Governmental Authority regarding the Borrower set forth in Commitments or any transaction being financed with the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there proceeds thereof shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholebe ongoing;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiix) [Reserved.]certified copies of amendments to the Note Agreements and any material documents related thereto, each in form and substance reasonably satisfactory to the Administrative Agent;
(ixxi) copies a solvency certificate, dated as of the Effective Date and signed by the chief financial officer of Borrower, confirming that the Borrower is Solvent, and the Borrower and its Subsidiaries on a consolidated basis, are Solvent before and after giving effect to the funding of the Term Loan A and any Revolving Loans and any other extensions of credit on the Effective Date and the consummation of the other transactions contemplated herein;
(A) the quarterly audited financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter period ending on December 31, 2020 2016 and (B) the audited consolidated financial statements projections for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than next five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two Fiscal Years;
(2xiii) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower Loan Parties that the Administrative Agent or such Lender reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).Act; and
(dxiv) At least five (5) days such other documents, certificates, information or legal opinions as the Administrative Agent or the Lenders may reasonably request, all in form and substance satisfactory to the Administrative Agent and the Lenders. For purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required 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 Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerproposed Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Second Amendment shall not become effective until on the date on which when each of the following conditions is shall have been satisfied (or waived in accordance with Section 9.2).the date of such effectiveness, the “Second Amendment Effective Date”):
(a) The Administrative a. Agent and the Joint Lead Arrangers shall have received all fees counterparts of this Second Amendment executed and other amounts due and payable on or delivered by a duly authorized officer of each party hereto.
b. To the extent invoiced at least one (1) Business Day prior to the Closing Second Amendment Effective Date, including reimbursement or payment of the Loan Parties shall pay all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid incurred by the Borrower hereunder, under any other Credit Document Lenders and under any agreement Agent in connection with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart preparation, negotiation, execution and delivery of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid Second Amendment (including, without limitation, principalthe reasonable and documented fees and expenses of King & Spalding LLP as counsel to Agent).
c. The Borrower shall have paid the Administrative Agent (for the benefit of the Lenders) an extension fee in an amount equal to 1.50% of the $70,000,000 aggregate principal amount of outstanding Term Loans on the date hereof (which amount of the extension fee, interest and feesfor the avoidance of doubt, is $1,050,000) (the “Extension Fee”), or will which fee shall be repaid substantially concurrently with the closing of this Agreement, paid in U.S. dollars and (C) the “commitments” of the lenders under the Existing Credit Agreements in immediately available funds.
d. Agent shall have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) received a certificate of the Secretary or Assistant Secretary of each Loan Party certifying (A) such certificates of good standing of a recent date from the applicable secretary of state of the Borrower in state of organization of each Loan Party, (B) copies attached thereto of the form certificate of Exhibit 3.1(b)(iii)incorporation and by-laws (or similar organizational documents) of a recent date from the applicable secretary of state of the state of organization of such Loan Party, attaching and certifying (C) copies of its bylaws and attached thereto of the resolutions of its boards the board of directorsdirectors or other applicable authorizing body or Person of such Loan Party authorizing and empowering certain officers of such Loan Party to effect such borrowings or other transactions hereunder as such officers may deem necessary or desirable for proper corporate purposes, authorizing the execution, delivery and performance of the Credit Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion of inside or outside counsel subject to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower limitations set forth in the Credit Documents are true and correct in all material respects such resolutions, and (CD) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects names and true signatures of the Borrower officers of such Loan Party executing this Agreement and its subsidiaries taken as a whole;
(vii) if a Borrowing will the other documents to be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserveddelivered by such Loan Party hereunder.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (eHealth, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) initially to make Loans and the obligation of the Issuing Bank initially to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Markets, a division of SunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, duly executed Notes payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest a duly executed Subsidiary Guarantee Agreement and fees), or will be repaid substantially concurrently with the closing of this Agreement, Indemnity and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Contribution Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary Secretary, or manager or member, as applicable, of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company operating agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of incorporation or organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30of Section 3.2 and, 2020further, there shall have been no material adverse change in the businessdemonstrating compliance with Sections 6.1, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects 6.2 and 6.4 as of the Borrower and its subsidiaries taken as a wholemost recent fiscal quarter ended;
(viiviii) certified copies of all consents, approvals, authorizations, registrations or filings required to be made or obtained by each Loan Party in connection with the Loans and any transaction being financed with the proceeds of the Loans;
(ix) duly executed payoff letters, in form and substance satisfactory to the Administrative Agent, executed by each lender holding Indebtedness to be refinanced at closing;
(x) UCC, judgment and tax lien searches in the jurisdiction of the chief executive office and jurisdiction of incorporation or organization of each Loan Party, together with copies of all financing statements on file in such jurisdictions (with all attachments) and evidence that no Liens exist on any assets or properties of any such Loan Party (other than Liens permitted by Section 7.2);
(xi) a certificate of insurance issued on behalf of insurers of each Loan Party, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by such Loan Party, naming the Administrative Agent as additional insured under all liability insurance;
(xii) duly executed Notices of Borrowing, if applicable, accompanied by a Borrowing will be made on Availability Certificate as of the Closing Date, a duly executed Notice end of Borrowing and the most current fiscal quarter preceding the effective date hereof; and
(xiii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is are satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees payable to the Administrative Agent, any Lender or any Arranger on or prior to the Effective Date and, to the extent invoiced at least one (1) Business Day before the Effective Date (except as reasonably agreed by the Borrower), all other fees, expenses and other amounts due and payable under the Loan Documents on or prior to the Closing Effective Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arrangers and their respective Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any other agreement with the Administrative Agent or the Joint Lead Arrangersany Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance reasonably satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary other Responsible Officer of the Borrower in the form of Exhibit 3.1(b)(iii), each Loan Party attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party; provided, in the case of the Borrower, such certificate may certify that there has been no change to the limited liability company agreement or to the name and title of each officer of the Borrower executing the Credit Loan Documents;, in each case since those delivered pursuant to Section 3.1(a)(ii) on the Signing Date.
(ivii) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party (other than the Borrower, which may certify that there has been no change since those delivered pursuant to Section 3.1(a)(iii) on the Signing Date), together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party;
(viii) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Effective Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower Loan Parties set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), except to the extent any representation or warranty relates to a specified date, in which case such representation or warranty shall be accurate as of such date, and (Cz) since September June 30, 20202025, there shall have been no material adverse change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) a solvency certificate from a Responsible Officer of the Borrower substantially in the businessform attached hereto as Exhibit C-2;
(v) a customary favorable written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, condition LLP, counsel to the Loan Parties;
(financial vi) either (1) certified copies of all governmental and material third party consents, approvals, authorizations, registrations and filings and orders (other than those (A) routinely obtained in the ordinary course of business or otherwiseafter the closing of sales or transfers of assets, (B) filings necessary to perfect the Liens created under the Loan Documents or (C) that, if not made or obtained, would not cause a Default hereunder and could not reasonably be expected to have a Material Adverse Effect) required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Revolving Commitments or any transaction being financed with the proceeds thereof shall be ongoing, or (2) a certificate of a Responsible Officer of each Loan Party stating that no such consents, approvals, authorizations, registrations, filings or orders are so required;
(vii) each Collateral Document set forth on Schedule 1.1B required to be executed on the Effective Date as indicated on such schedule, duly executed by each Loan Party thereto, as applicable, together with:
(A) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on assets of the Borrower and each Subsidiary Guarantor that is party to the Security Agreement, covering the Collateral described in the Security Agreement; and
(B) evidence that all other actions, recordings and filings required by the Collateral Documents as of the Effective Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (subject to Schedule 5.20 attached hereto) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower providing authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent shall be reasonably satisfactory to the Administrative Agent);
(viii) copies of duly executed payoff letters for any existing Indebtedness not permitted under Section 7.3 (including the Existing Facility Refinancing), operations, liabilities together with (contingent A) UCC-3 or otherwise), properties or prospects other appropriate termination statements releasing all related liens upon any of the personal property of the Borrower and its subsidiaries taken as a whole;
Subsidiaries, (viiB) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing cancellations and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses releases releasing all related liens upon any of the proceeds hereof;
Real Property of the Borrower and its Subsidiaries, and (viiiC) [Reserved.]any other releases, terminations or other documents reasonably required by the Administrative Agent;
(ix) true, complete and correct copies of (A) the quarterly financial statements as certified by a Responsible Officer of the Borrower and its Subsidiaries on Borrower) of the executed indenture evidencing the issuance of the Permitted 2025 Notes;
(x) a consolidated basis Note for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings each Lender requesting one in accordance with the Securities and Exchange Commission prior to the date hereofSection 2.8(b); and
(xxi) such each other documentsdocument, certificates or certificate and information as the Joint Lead Arrangers may Administrative Agent shall have reasonably request, all requested.
(c) The Existing Facility Refinancing shall have been consummated or shall be consummated substantially contemporaneously with the occurrence of the Effective Date and the initial advance of Loans hereunder.
(d) The Permitted 2025 Notes shall have been issued substantially concurrently with the Effective Date pursuant to documentation in form and substance reasonably satisfactory to the Joint Lead ArrangersAdministrative Agent, and proceeds thereof shall have been used or shall be used substantially concurrently on the Effective Date to repay the obligations under the Existing Credit Agreement (other than to the extent such amounts are refinanced hereby) (such payment, the “Required Paydown”).
(ce) To The Signing Date shall have occurred.
(f) All representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of the Effective Date, except to the extent requested any representation or warranty relates to a specified date, in which case such representation or warranty shall be accurate as of such date.
(g) The Effective Date shall have occurred by December 31, 2025. Without limiting the Administrative Agent generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in writing not less than five (5) Business Days prior this Section, each Lender that has signed this Credit Agreement shall be deemed to the Closing Datehave consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)proposed Effective Date specifying its objection thereto.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) if requested by any Lender, duly executed Revolving Credit and/or Competitive Bid Notes payable to such Lender and the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementSwingline Lender;
(iii) the duly executed Subsidiary Guaranty Agreement and Indemnity and Contribution Agreement, executed by each Domestic Subsidiary and acknowledged by the Borrower;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company operating agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation and a failure to be so qualified would have a Material Adverse Effect;
(vvi) a favorable written opinion of inside or outside counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Revolving Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiix) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(ixxi) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31November 1, 2020 2002, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30Fiscal Years ended 2000, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2001 and Exchange Commission prior to the date hereof)2002; and
(xxii) such other documentscertificates of insurance issued on behalf of insurers of the Borrower and all guarantors, certificates or information as describing in reasonable detail the Joint Lead Arrangers may reasonably request, all in form types and substance reasonably satisfactory to the Joint Lead Arrangers.
amounts of insurance (cproperty and liability) To the extent requested maintained by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, Borrower and all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.guarantors
Appears in 1 contract
Conditions to Effectiveness. The effectiveness of this Agreement, and the obligations of the Lenders to make Loans hereunder under the terms of this Agreement, shall not become effective until be subject to the date on which satisfaction of each of the conditions in Section 6.03 and each of the following conditions (unless such condition is satisfied (or waived in writing in accordance with Section 9.2).12.02):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received (i) all fees fees, expense reimbursements and other amounts due and payable on or prior owed to the Closing DateAdministrative Agent or any other Lender in connection with this Agreement, including and (ii) to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunderhereunder (including, under any other Credit Document without limitation, the fees and under any agreement with expenses of ▇▇▇▇▇▇▇▇ PC, counsel to the Administrative Agent or and local counsel for the Joint Lead ArrangersAdministrative Agent in those States in which Mortgaged Property consisting of Oil and Gas Properties are located).
(b) The Administrative Agent (or its counsel) shall have received a certificate of the following:
(i) a counterpart of this Agreement signed by Secretary, an Assistant Secretary or on behalf of each party hereto or written evidence other duly authorized officer satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Parent, the Borrower has delivered notice (or the managing member thereof) and of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” each of the lenders under Subsidiaries, including the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
ENP Entities and Acquisition Company setting forth (iiii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, directors or board of managers (or equivalent body) or its managing member authorizing the execution, delivery and performance of the Credit Loan Documents and certifying to which each is a party and, in the name, title and true signature of each officer case of the Borrower, the Borrowing hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (ii) the officers of the Parent, the Borrower executing (or any managing member thereof), such Subsidiaries, (y) who are authorized to sign the Credit Documents;
Loan Documents to which the Parent, the Borrower and to which each such Subsidiary is a party and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, (iii) specimen signatures of such authorized officers, and (iv) certified copies of the articles or certificate of incorporation and bylaws or certificate of formation and partnership agreement or certificate of formation and limited liability company agreement (as the case may be) of the Parent, the Borrower and such Subsidiaries, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to the contrary.
(c) The Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of the Parent, the Borrower, and each of the Subsidiaries, including the ENP Entities and Acquisition Company.
(d) The Administrative Agent shall have received from each party hereto counterparts (in such number as may be requested by the Administrative Agent) of this Agreement signed on behalf of such party.
(e) All Schedules to this Agreement shall have been updated by the Borrower through the Effective Date, and the Administrative Agent shall have received a certificate from a Responsible Officer certifying that all Schedules to this Agreement and the Loan Documents are current, and true, correct and complete, through the Effective Date after giving effect to the consummation of the ENP Transaction.
(f) The Administrative Agent shall have received duly executed Notes payable to the order of each Lender requesting a Note in a principal amount equal to its Commitment dated as of the date hereof.
(g) The Administrative Agent shall have received in form and substance satisfactory to it evidence satisfactory to the Administrative Agent that (A) all outstanding Debt under the Paribas Term Loan Credit Agreement and the Paribas Term Loan Documents has been repaid in full and such Paribas Term Loan Credit Facility has been terminated and extinguished (or is being repaid in full and terminated and extinguished concurrently on the Effective Date) and (B) all Liens on all Properties of all of the Loan Parties securing amounts owing under the Paribas Term Loan Credit Facility are released on the Effective Date pursuant to releases satisfactory to the Administrative Agent.
(h) With respect to the ENP Transaction:
(i) the Administrative Agent shall have received in form and substance satisfactory to it: (A) a true and complete executed copy of each of the ENP Transaction Documents in effect as of the Effective Date; (B) original counterparts or copies, certified as true and complete, of the assignments, deeds and leases for all of the ENP Oil and Gas Properties; and (C) such other related documents and information as the Administrative Agent shall have requested with respect to the transaction contemplated by the ENP Transaction Documents.
(ii) the ENP Transaction shall be consummated on the terms and conditions outlined in the Merger Agreement, provided that any other terms, structure and manner of the ENP Transaction not specified in the Merger Agreement, including the acquisition of the ENP Properties by the Borrower through the merger, the creation of Acquisition Company and any other new acquisition Subsidiary of the Borrower, together with certificates of good standing or existence, as may shall in each case be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion of inside or outside counsel to the Borrower, addressed satisfactory to the Administrative Agent and each the Lenders.
(iii) the Administrative Agent shall have received in form and substance acceptable to it, a certificate of a Responsible Officer of the Lenders, Borrower and covering such matters of Acquisition Company certifying (A) that Acquisition Company is concurrently consummating the acquisition contemplated by the ENP Transaction Documents and all material conditions precedent thereto have been satisfied in all material respects by all of the parties thereto; and (B) that attached thereto is a true and complete list of all of the ENP Oil and Gas Properties subject to the ENP Transaction Documents which are owned by Acquisition Company.
(iv) Acquisition Company shall have delivered to the Administrative Agent title information and data acceptable to the Administrative Agent relating to title to the Borrower, mineral interests in the Credit Documents ENP Oil and the transactions contemplated therein Gas Properties. These title assurances shall include such post closing title work as the Administrative Agent or may request.
(v) the Required Lenders ENP Oil and Gas Properties shall reasonably request;comply with Section 8.10(c) with respect to environmental matters.
(vi) a certificate in the form Administrative Agent shall have received evidence satisfactory to the Administrative Agent that each of Exhibit 3.1(b)(vi)the following has occurred pursuant to terms, dated conditions and documentation acceptable to the Closing Date and signed by a Financial Officer, certifying that Administrative Agent: (A) no Default or Event all outstanding Debt under the ENP Credit Agreement has been assigned by the lenders under the ENP Credit Agreement to the First Lien Lenders, including delivery of Default existsany promissory notes issued pursuant to the ENP Credit Agreement duly endorsed, together with an assignment of all Liens and security interests on all ENP Properties securing such Debt under the ENP Credit Agreement, in each case in a manner satisfactory to the Administrative Agent, (B) such Debt is being consolidated and refinanced by the First Lien Credit Agreement and the First Lien Loan Documents in a manner satisfactory to the Administrative Agent, and (C) all Liens on all ENP Properties securing amounts owing under the ENP Credit Agreement are being consolidated, amended and restated by the First Lien Loan Documents and shall constitute first priority perfected Liens securing the Obligations (as defined in the First Lien Credit Agreement; subject only to Excepted Liens identified in clauses (a) through (h) of the definition thereof), in each case in a manner satisfactory to the Administrative Agent.
(vii) The Administrative Agent shall have received from Acquisition Company duly executed counterparts (in such number as may be requested by the Administrative Agent) of Mortgages covering the ENP Oil and Gas Properties, which Mortgages shall be in form and substance satisfactory to the Administrative Agent. In connection with the execution and delivery of such Mortgages, the Administrative Agent shall be satisfied that such Mortgages create first priority, perfected Liens on the ENP Oil and Gas Properties (subject only to Excepted Liens identified in clauses (a) through (h) of the definition thereof, but subject to the provisos at the end of such definition).
(i) The Administrative Agent shall have received from the Parent, the Borrower and each Subsidiary, in each case to the extent applicable, duly executed counterparts (in such number as may be requested by the Administrative Agent) of such amendments to and/or confirmations of the Security Instruments executed and delivered prior to the date hereof as may be required by the Administrative Agent, which amendments and/or confirmations shall be in form and substance satisfactory to the Administrative Agent.
(j) Each of the Loan Documents shall be in full force and effect.
(k) Each of the First Lien Loan Documents shall be in full force and effect.
(l) The Parent, the Borrower, each of the Subsidiaries, including the ENP Entities and Acquisition Company shall have executed, acknowledged, delivered, recorded, re-recorded, filed, re-filed, registered and re-registered any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject the Parent, the Borrower, or any of the Subsidiaries’ (including any ENP Entities' and Acquisition Company's) Properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Security Instruments, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Instruments and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any of the Parent, the Borrower or any of the Subsidiaries (including the ENP Entities and Acquisition Company) is or is to be a party, and cause each of the Subsidiaries to do so.
(m) The Administrative Agent shall have received an opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Parent, the Borrower, and the Subsidiaries, including the ENP Entities and Acquisition Company, acceptable to the Administrative Agent covering such matters with respect to the Loan Documents as the Administrative Agent may reasonably request, including without limitation those matters described in Sections 7.01 and 7.02, and (ii) with respect to each of the Oil and Gas Properties and each of the Security Instruments, local counsel opinions as appropriate or requested by the Administrative Agent, covering such matters with respect to the Oil and Gas Properties and the Security Instruments as the Administrative Agent may reasonably request.
(n) The Administrative Agent shall have received a certificate of insurance coverage of the Borrower, Acquisition Company and/or the ENP Entities evidencing that the Borrower and/or the applicable ENP Entities is carrying insurance in accordance with Section 7.12 with respect to the ENP Properties.
(o) The Administrative Agent shall have received satisfactory evidence that no event, development or circumstance has occurred or shall then exist that has resulted in, or could reasonably be expected to have, a Material Adverse Effect.
(p) The Administrative Agent shall be satisfied that no material disruption or material adverse change has occurred in conditions in the financial, banking or capital markets which the Agents and Arrangers, in their discretion, deems material in connection with the syndication of the credit facility evidenced by this Agreement.
(q) The representations and warranties of the Parent, the Borrower and the Subsidiaries (including the ENP Entities and Acquisition Company) set forth in this Agreement and in the other Loan Documents, and the representations and warranties of the ENP Entities set forth in the Credit ENP Transaction Documents are shall be true and correct in all material respects (except that any representation or warranty that is qualified as to materiality or by a Material Adverse Effect clause shall be true and (C) since September 30, 2020, there shall have been no material adverse change correct in the business, condition (financial or otherwiseall respects), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, except to the extent the Borrower qualifies any such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall continue to be true and correct as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerof such specified earlier date.
Appears in 1 contract
Sources: Term Loan Agreement (Vanguard Natural Resources, LLC)
Conditions to Effectiveness. The obligations of This Agreement shall become effective, and the Lenders Lenders, the Swingline Lender and Issuing Bank shall be obligated to make the initial Loans hereunder shall not become effective until and issue the date on which each initial Letters of Credit hereunder, upon the satisfaction of the following conditions, in addition to the conditions is satisfied (or waived precedent specified in accordance with Section 9.2).3.2:
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Restatement Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of outside counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) a duly executed Revolving Credit Note payable to each Lender requesting the same and the Swingline Note payable to the Swingline Lender;
(iii) the Guaranty Agreement duly executed by the Guarantor;
(iv) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Dateall outstanding Loans and all accrued interest, (B) all amounts fees and expenses outstanding under the Existing Credit Agreements Agreement as of the Restatement Date have been paid in full (includingincluding any amounts required by any Lenders, without limitation, principal, interest and fees), or will be repaid substantially concurrently with as a condition to the closing effectiveness of this Agreement, and (C) the “commitments” to be paid pursuant to Section 2.17 of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently Agreement in connection with the closing of this Agreementsuch payment);
(iiiv) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(v), attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside counsel to the Borroweropinion, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request, of (a)Andrews Kurth LLP, counsel to the Borrower and Intermediate ▇▇▇▇▇▇▇▇▇▇▇, and (b) Janet Place, Vice President and General Counsel of Northern ▇▇▇▇ns Natural Gas Company, LLC, Pan Border Gas Company, LLC, and NBP Services, LLC;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(viii), dated the Closing Restatement Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viiix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(x) a duly executed funds disbursement agreementletter, together with a report setting forth the sources and uses of the proceeds hereof;; 44
(viiixi) [Reserved.];certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Credit Facility or any transaction being financed with the proceeds thereof shall be ongoing; and
(ixxii) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial balance sheets and related statements for of income, owners' equity, and cash flows of the Borrower and its Subsidiaries for the fiscal year Fiscal Years ending September 30December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2003, December 31, 2004 and Exchange Commission prior to the date hereof); and
(x) such other documentsDecember 31, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers2005.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Sole Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementAgreement and all other Loan Documents;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(viv) a favorable written opinion of inside or outside ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of any initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Revolving Borrowing;
(vii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ix) receipt and satisfactory review of the consolidated audited financial statements of the Borrower and its subsidiaries for the fiscal year ended December 31, 2011, December 31, 2012 and December 31, 2013, including balance sheets, income statements and cash flow statements audited by independent public accountants of recognized national standing in conformity with GAAP;
(x) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarters ending on June 30, 2013, September 30, 2013, and December 31, 2020 2013, and (BC) financial projections on a quarterly basis for the Fiscal Year ending December 31, 2014;
(xi) a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of June 30, 2014, calculated on a pro forma basis as if any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations);
(xii) a certificate, dated the Closing Date and signed by the chief financial officer of each Loan Party, confirming that each Loan Party is Solvent before and after giving effect to the funding of any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(xiii) the audited consolidated financial statements for Guaranty Agreement, duly executed by the Borrower and each of its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); andDomestic Subsidiaries;
(xxiv) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).laws;
(dxv) At least five all governmental and third party consents and approvals;
(5xvi) days certified copies of all Material Agreements;
(xvii) receipt of UCC-11 reports and other due diligence reports containing no information objectionable to Administrative Agent; and
(xviii) certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make the Term Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including upfront fees for the Lenders and reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Sole Lead Arrangers.Arranger
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement and each other Loan Document (other than the Term Notes) signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf other electronic transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence duly executed Term Notes payable to such Lenders that have requested a Term Note at least one (A1) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days Day prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) delivery of lien searches in form and substance reasonably satisfactory to the Administrative Agent;
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower General Partner in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and (x) the bylaws, partnership agreement, or comparable organizational documents of the Borrower and the General Partner and (y) resolutions of its boards the board of directorsdirectors or comparable governing body of the General Partner and the General Partner on behalf of the Borrower, authorizing the execution, delivery and performance of the Credit Loan Documents and certifying by the name, title and true signature of each officer of the Borrower executing the Credit DocumentsBorrower;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of the BorrowerBorrower and the General Partner, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrower and the General Partner, and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation;
(vi) a certificate signed by a Responsible Officer, certifying the name, title and true signature of each officer of the General Partner executing the Loan Documents on behalf of the Borrower;
(vvii) a favorable written opinion of inside or outside counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerBorrower and the General Partner, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;; and
(viviii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(viii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Av) all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law or by any Contractual Obligation of the Borrower, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents, the Acquisition Agreements or any of the transactions contemplated thereby have been obtained, (w) no Default or Event of Default exists, (Bx) no default or event of default exists in respect of any Material Indebtedness, (y) all representations and warranties of the Borrower set forth in the Credit Loan Documents are true and correct in all material respects in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) and (Cz) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects as of the Borrower and its subsidiaries taken Closing Date the Leverage Ratio, calculated after giving pro forma effect to the Acquisition as a whole;
(vii) if a Borrowing will be made it had occurred on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses first day of the proceeds hereof;
(viii) [Reserved.]first Fiscal Quarter used for determining the Leverage Ratio, is not greater than 5.50:1.00;
(ix) copies a certificate, dated the Closing Date and signed by the chief financial officer of the General Partner, confirming that the Borrower is Solvent before and after giving effect to the funding of the Term Loans and the consummation of the transactions contemplated to occur on the Closing Date;
(A) the quarterly unqualified audited financial statements of the Borrower and its Subsidiaries on a consolidated basis GTN LLC for each of the three prior fiscal quarter years ending on December 31more than 90 days prior to the Closing Date, 2020 and (B) unaudited income statements of Bison for each of the audited consolidated two prior fiscal years ending more than 90 days prior to the Closing Date and unaudited balance sheets of Bison for each of the three prior fiscal years ending more than 90 days prior to the Closing Date, (C) to the extent not otherwise included in one of the annual periods described above, unaudited financial statements for any quarterly interim period or periods of the Borrower, Bison and GTN LLC (with notes to the financial statements of GTN LLC only to the extent available) ending more than 45 days prior to the Closing Date, together with unaudited financial statements for the corresponding period of the prior year, (D) to the extent not otherwise included in one of the annual or quarterly periods described above, unaudited financial statements of the Borrower, Bison and GTN LLC for each monthly period ending more than 30 days prior to the Closing Date, together with unaudited financial statements for the corresponding month of the prior year, to the extent available, (E) customary additional unqualified audited and unaudited financial statements for all recent or pending acquisitions by the Borrower and its Subsidiaries and (F) customary pro forma financial statements, in each case contemplated by clauses (A) through (E) above, meeting the requirements of Regulation S-X for Form S-1 registration statements;
(xi) the fiscal year ending September 30, 2020 Administrative Agent shall have received financial projections of the Borrower and its Subsidiaries through the 2015 Fiscal Year which will be prepared on a pro forma basis to give effect to the transactions contemplated hereunder and under the Acquisition Agreements and will include consolidated income statements (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with clearly noted levels of adjusted cash flow prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended, and Exchange Commission prior to the date hereof); and
(x) with such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all further adjustments in form and substance reasonably satisfactory to the Joint Administrative Agent, in each case, which levels shall be consistent in all material respects with the pro forma schedule of sources and uses and the financial projections provided to the Administrative Agent on or prior to the date of the execution of the Commitment Letter), consolidated balance sheets and consolidated cash flow statements, a pro forma schedule of sources and uses and a pro forma consolidated balance sheet of the Borrower as at the Closing Date, all of which will be in form and substance and at levels reasonably satisfactory to the Administrative Agent (it being recognized by the Administrative Agent that any projections and forecasts provided to the Administrative Agent or the Sole Lead Arrangers.Arranger by the Borrower in good faith and based upon reasonable assumptions are not to be viewed as facts and that actual results during the period or periods covered by any such projections and forecasts may differ from the projected or forecasted results); and
(cxii) To to the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing DateAgent, the Administrative Agent shall have received, not later than two (2) calendar days a reasonable time prior to the Closing Date, all documentation and other information with respect to the Borrower and the General Partner that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act Act.
(c) The terms of the Acquisition Agreements and all related documents (the “Acquisition Documents”) shall be reasonably satisfactory to the Administrative Agent. The Acquisition shall have been consummated or will be consummated on the Closing Date and no amendment, modification or waiver of any term of any Acquisition Document or any condition to the Borrower’s obligation to consummate the Acquisition thereunder (other than any such amendment, modification or waiver that is not adverse in any material respects to any interest of the Lenders) has been made or granted, as defined belowthe case may be, without the prior written consent of the Administrative Agent, such consent not to be unreasonably withheld (it being understood that any increase in the price or change to the structure of the Acquisition is deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Administrative Agent).
(d) At least five (5) days prior The Administrative Agent shall have completed and be satisfied, in its discretion, with the results of its due diligence investigations with respect to the Closing Datebusiness, general affairs, assets, liabilities, operations, management, financial condition, equity holders’ equity, results of operations and value of the Borrower, Bison, GTN LLC, and their respective subsidiaries taken as a whole and the tax, accounting, legal, environmental, regulatory and other issues relevant to the extent Borrower, Bison, GTN LLC and their respective subsidiaries and the transactions contemplated hereunder and under the Acquisition Agreements.
(e) at the time of and immediately after giving effect to the Borrowing, no Default or Event of Default shall exist;
(f) at the time of and immediately after giving effect to the Borrowing, all representations and warranties of the Borrower qualifies set forth in the Loan Documents shall be true and correct in all material respects on and as a “legal entity customer” under of the Beneficial Ownership Regulation, date of the Borrowing; and
(g) the Borrower shall deliver a Beneficial Ownership Certification in relation to have delivered the Borrowerrequired Notice of Term Loan Borrowing.
Appears in 1 contract
Sources: 364 Day Senior Bridge Loan Agreement (Tc Pipelines Lp)
Conditions to Effectiveness. The amendment and restatement of the Existing Credit Agreement by this Agreement, the obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Sole Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) any promissory notes requested by the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Lenders pursuant to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and feesSection 2.10(b), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a Reaffirmation of Guaranty and Security Agreement substantially in the form of Exhibit 3.1(b)(iii), duly executed by the Borrower and the other Loan Parties (the “Reaffirmation of Guaranty and Security Agreement”);
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party substantially in the form of Exhibit 3.1(b)(iii3.1(b)(iv), (A) attaching and certifying copies of (1) its bylaws bylaws, partnership agreement, limited liability company agreement or comparable organizational document, and of (2) the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and (B) certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC, counsel to the BorrowerLoan Parties (including Maryland counsel to the REIT Guarantor), addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Documents Loan Documents, the Collateral and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate substantially in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial OfficerResponsible Officer and the chief financial officer of the REIT Guarantor and the Borrower, certifying that that, after giving effect to the funding of any initial Revolving Borrowing, the issuance of any initial Letters of Credit, and the consummation of the transactions contemplated to occur on the Closing Date (including the execution and delivery of the Loan Documents), (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (or in the case of representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality qualifier, in all respects) and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeeach Loan Party is Solvent;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Revolving Borrowing or Swingline Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofof any such initial Borrowing;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) a duly completed and executed Compliance Certificate, including calculations of the Financial Covenants hereof as of June 30, 2016, calculated on a pro forma basis as if any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such other calculations);
(xi) all documents, reports, certificates or and other information as requested by Administrative Agent in connection with the Joint Lead Arrangers may reasonably requestinitial Unencumbered Pool Properties set forth on Schedule 4.18 and the determination to include such Properties in the initial Unencumbered Pool Value hereunder (which shall include, all in form and substance reasonably satisfactory at a minimum, each item required pursuant to Section 3.4 hereof not previously delivered to the Joint Lead Arrangers.Administrative Agent);
(cxii) To copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, by the extent REIT Guarantor, the Borrower or any of their respective Subsidiaries in connection with the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(xiii) copies of all Material Agreements requested by Administrative Agent;
(xiv) if requested by the Administrative Agent Agent, certificates of insurance, in writing not less than five (5) Business Days prior form and detail acceptable to the Closing DateAdministrative Agent, describing the Administrative Agent shall have received, not later than two types and amounts of insurance (2property and liability) calendar days prior to maintained by any of the Closing Date, Loan Parties;
(xv) copies of all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities any Governmental Authority under the Patriot Act and other applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).laws; and
(dxvi) At least five (5) days all such other documents, certificates and information as the Administrative Agent or the Required Lenders shall have reasonably requested. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required hereunder to be consented to, 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2 or otherwise permitted to be satisfied after the Closing Date pursuant to Section 5.16):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Lead Arrangers and their Affiliates (including reasonable fees, charges and disbursements of one primary counsel to the Administrative Agent, one local counsel in each applicable jurisdiction and any special regulatory counsel) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws and (i) such Loan Party’s articles or certificate of incorporation, formation, organization or limited partnership, or other registered organizational documents, certified as of a recent date by the Secretary of State of the jurisdiction of organization of such Loan Party, (ii) such Loan Party’s bylaws, limited liability company agreement or partnership agreement, as applicable, (iii) the resolutions of its boards such Loan Party’s board of directors, managers, members, general partner or other equivalent governing body, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party, (iv) certificates of good standing or existence, as applicable, from the Secretary of State of the jurisdiction of incorporation or organization of such Loan Party and certifying each other jurisdiction where the failure of such Loan Party to be qualified to do business as a foreign company would have a Material Adverse Effect, in each case as of a recent date, and (v) a certificate of incumbency containing the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which such Loan Party is a party;
(iviii) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions of organization of the Borrower;
(v) a favorable written opinion opinions of inside or outside Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, and Albright, Stoddard, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Nevada counsel to the Loan Parties, in each case, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viiv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(iv), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the Related Transactions, (A) no Default or Event of Default existshas occurred and is continuing on the Closing Date, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (date of the financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects statements of the Borrower described in Section 4.4(i), there has been no change which has had or could reasonably be expected to have a Material Adverse Effect and its subsidiaries taken as a whole(D) the conditions set forth in clauses (b)(vii), (b)(xix), (c) and (d) below have been satisfied;
(viiv) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Revolving Borrowing;
(vi) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiivii) [Reserved.]all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents, the other Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixviii) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December Fiscal Quarter ended March 31, 2020 2014, including the related statements of income and cash flows, (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Year ended December 31, 2013, including in each case the related statements of income, shareholders’ equity and cash flows, and (C) financial projections on a quarterly basis for the Fiscal Year ending September 30December 31, 2020 (it being agreed that this clause 2014 and annually thereafter through December 31, 2017;
(ix) is satisfied by a duly completed and executed Compliance Certificate, including calculations of the Borrower’s filings with financial covenants set forth in Article VI hereof as of March 31, 2014, calculated on a pro forma basis as if any initial Revolving Borrowing had been funded, and the Securities Spin-Off Transaction and Exchange Commission prior to the date hereofother Related Transactions had occurred, as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations); and;
(x) such other documentsa certificate, certificates or information as dated the Joint Lead Arrangers may reasonably requestClosing Date and signed by the chief financial officer of the Borrower, all in form confirming that the Borrower is, and substance reasonably satisfactory the Borrower and its Subsidiaries, on a consolidated basis, are, Solvent before and after giving effect to the Joint Lead Arrangers.funding of any initial Revolving Borrowing and the consummation of the Spin-Off Transaction and the other Related Transactions contemplated to occur on or within three (3) Business Days of the Closing Date;
(cxi) To the extent Guaranty and Security Agreement, duly executed by the Borrower and each of its Domestic Subsidiaries (other than the Excluded Subsidiaries), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in writing not less order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax and judgment lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than five (5) Business Days prior Permitted Encumbrances and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries (other than the Excluded Subsidiaries) owned directly by any Loan Party; provided that, in the case of Capital Stock of any Foreign Subsidiary that is a CFC and Capital Stock of any Pass-Through Foreign Holdco, such original certificates shall be limited to 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary or such Pass-Through Foreign Holdco, as applicable, (F) stock or membership interest powers or other appropriate instruments of transfer executed in blank and (G) a master intercompany promissory note duly executed by the Borrower and its Subsidiaries;
(xii) evidence that not less than $260,000,000 of senior unsecured notes have been, or on the Closing Date will be, issued by CareTrust Partnership, L.P. and CareTrust Capital Corp.;
(xiii) evidence that CTRI and certain of its Subsidiaries have entered into that certain Credit Agreement, to be dated as of the Closing Date, by and among CareTrust Partnership, L.P., as the borrower, the guarantors party thereto and SunTrust Bank, as administrative agent, providing for commitments thereunder on the Closing Date of not less than $150,000,000;
(xiv) with respect to (i) the Real Estate leased for the corporate headquarters of the Loan Parties, a copy of the underlying lease and a Collateral Access Agreement and (ii) any other Real Estate that is leased by the Loan Parties from any PropCo Landlord pursuant to a PropCo Master Lease, a copy of the underlying lease and a Collateral Access Agreement, in each case which Collateral Access Agreement shall be reasonably satisfactory in form and substance to the Administrative Agent; provided that, with respect to the foregoing clause (i) only, this condition shall be deemed to be satisfied if the Borrower uses its commercially reasonable efforts to deliver such Collateral Access Agreement on the Closing Date (whether or not any such Collateral Access Agreement is delivered on the Closing Date) and the Borrower shall use its commercially reasonable efforts (but not be under any requirement) to deliver such Collateral Access Agreement within thirty (30) days after the Closing Date;
(xv) copies of duly executed payoff letters, in form and substance satisfactory to the Administrative Agent, executed by each of the Existing Lenders or the administrative agent or other representative under the applicable financing documents, together with (a) UCC-3 or other appropriate termination statements, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the personal property of the Borrower and its Subsidiaries granted pursuant to such financing documents, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the Real Estate of the Borrower and its Subsidiaries granted pursuant to such financing documents, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent shall to evidence the payoff of Indebtedness owed to the Existing Lenders issued or incurred pursuant to such financing documents;
(xvi) certified copies of all Material Agreements and Spin-Off Documents, in each case, that are in effect on the Closing Date;
(xvii) evidence that after giving effect to the Spin-Off Transaction neither the Borrower nor any of its Subsidiaries (other than one or more Spin-Off Subsidiaries) will be liable for or have receivedany further obligations with respect to, not later and that no assets of the Borrower or any of its Subsidiaries (other than two one or more Spin-Off Subsidiaries) will be subject to a Lien to secure or otherwise provide credit support for, any Indebtedness evidenced by the Ten Project Note, the GE Term Loan Agreement and/or the ▇▇▇▇▇▇▇ Notes;
(2xviii) calendar certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be, together with a lender’s loss payable endorsement in form and substance satisfactory to the Administrative Agent;
(xix) evidence that the Borrower has declared the dividend or distribution constituting the Spin-Off Transaction, in form and substance satisfactory to the Administrative Agent; and
(xx) at least three (3) days prior to the Closing Date, all documentation and other information with respect to the Borrower and each other Loan Party that the Administrative Agent or any Lender reasonably believes determines is required by regulatory authorities under applicable “know-your-know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the Patriot Act Act, to the extent reasonably requested by the Administrative Agent at least ten (10) days before the Closing Date.
(c) The Leverage Ratio as defined belowof the Closing Date is not greater than 0.50:1.00 (calculating Consolidated Total Net Debt on a pro forma basis giving effect to any initial Revolving Borrowing and Consolidated EBITDA with respect to the four consecutive Fiscal Quarters ending on March 31, 2014).
(d) At least five (5) days The Revolving Credit Exposure will not exceed $50,000,000 after giving effect to any initial Revolving Borrowing. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Banks to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arrangers and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement and each other Loan Document signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementAgreement or such Loan Document;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement (or a certificate from the Secretary or Assistant Secretary of each Subsidiary Guarantor certifying that such have documents not been amended since last delivered under the Existing Credit Agreement and remain in full force and effect), and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party (or a certificate from the BorrowerSecretary or Assistant Secretary of each Subsidiary Guarantor certifying that such certificates have not been amended since last delivered under the Existing Credit Agreement and remain in full force and effect), together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party;
(viv) a favorable written opinion of inside or outside ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Banks and the Lenders);
(viv) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of any initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of such date, with the same effect as if made at and as of that date, except to the extent that such representations and warranties related solely to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date) and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Revolving Borrowing;
(vii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ix) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31Fiscal Quarter ended September 30, 2020 2021, and (B) the audited consolidated and unaudited consolidating financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30Fiscal Year ended December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and2020;
(x) a duly completed and executed Compliance Certificate and Pool Certificate, including calculations of the financial covenants set forth in Article VI as of September 30, 2021, calculated on a pro forma basis as if the initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such other documentscalculations);
(xi) a certificate, certificates or information as dated the Joint Lead Arrangers may reasonably requestClosing Date and signed by the chief financial officer of each Loan Party, all in form confirming that each Loan Party is Solvent before and substance reasonably satisfactory after giving effect to the Joint Lead Arrangers.funding of the initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(cxii) To copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the extent Loan Parties, as requested by the Administrative Agent Agent, indicating that there are no prior Liens on any of the PoolUnencumbered Properties other than Permitted Encumbrances or the direct and indirect Equity Interests in writing not less each PoolUnencumbered Property Owner other than five Permitted Encumbrances set forth in clause (5i) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.of such definition;
Appears in 1 contract
Sources: Revolving Credit Agreement (Sila Realty Trust, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint SunTrust Capital Markets, Inc., as Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) duly executed Revolving Credit Notes payable to such Lender and the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementSwingline Lender;
(iii) a certificate of the Secretary or Assistant Secretary Secre-tary of the Borrower in the form of Exhibit 3.1(b)(iii)Borrower, attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Credit DocumentsLoan Documents to which it is a party;
(iv) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available avail-able from the Secretary of State of the jurisdictions its jurisdiction of organization of and each other jurisdiction where the BorrowerBorrower is required to be qualified to do business as a foreign corporation;
(v) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel to the Borrower, addressed to the Administrative Agent and each of the LendersLend-ers, and covering such matters relating to the Borrower, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(viii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of the Borrower or any of its Subsidiaries, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(x) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis and of the Borrower only for the fiscal quarter Fiscal Quarter ending on December March 31, 2020 2006, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Years ending September 30December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2004 and Exchange Commission prior to the date hereof)December 31, 2005; and
(xxi) such other documentsa true and correct copy of that certain Note Purchase and Master Shelf Agreement, certificates or information dated as of the Joint Lead Arrangers may reasonably requestdate hereof, all in form by and substance reasonably satisfactory among the Borrower, Prudential Investment Management, Inc. and the purchasers from time to time party thereto governing the Joint Lead Arrangersissuance of the 2006 Prudential Notes.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable All “know-your-customerObligations” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
in the Existing Credit Agreement) (dother than contingent obligations that by the terms of the Existing Credit Agreement survive the termination thereof) At least five (5) days prior to have been paid in full, or will be paid in full with the Closing Date, to initial funding hereunder. Upon the extent satisfaction of the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationforegoing conditions, the Borrower Existing Credit Agreement and all “Commitments” (as defined therein) shall deliver a Beneficial Ownership Certification in relation to the Borrowerbe deemed terminated.
Appears in 1 contract
Sources: Revolving Credit Agreement (Landamerica Financial Group Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreementhereto;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, (A) attaching and certifying (1) certified copies of its bylaws and articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents, (2) copies of its bylaws, or partnership agreement or limited liability company agreement or comparable organizational documents, (3) the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Credit Documents;
(iv4) certified copies of the articles or certificate of incorporation of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions its jurisdiction of organization and each other jurisdiction where it is required to be qualified to do business as a foreign corporation and (B) certifying the name, title and true signature of each officer of such Loan Party executing the BorrowerLoan Documents to which it is a party;
(viii) a favorable written opinion of inside or outside DLA Piper LLP (US), counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Bank and the Lenders and any other Person who becomes a Lender pursuant to Section 2.23 or 2.27);
(viiv) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event after giving effect to the funding of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a any Revolving Borrowing will to be made on the Closing Date, the conditions set forth in Sections 3.2(a) and 3.2(b) have been satisfied;
(v) a duly executed Notice of Borrowing and a duly executed funds disbursement agreementfor any Revolving Borrowing to be made on the Closing Date, together with a report setting forth the sources and uses of the proceeds hereofLoans made on the Closing Date;
(viiivi) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the LEGAL02/42400466v16 transactions contemplated hereby or thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ixvii) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on Fiscal Quarter ended December 31, 2020 and 2022, (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Years ended December 31, 2021 and December 31, 2022 and (C) financial projections on an annual basis for the Fiscal Years ending September 30December 31, 2020 2023, December 31, 2024, December 31, 2025, December 31, 2026 and December 31, 2027;
(it being agreed viii) a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI as of December 31, 2022, calculated on a pro forma basis (x) as if any Revolving Borrowing to be made on the Closing Date had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such calculations) and (y) after giving effect to the initial public offering that this clause occurred on January 12, 2023;
(ix) is satisfied a certificate, dated the Closing Date and signed by the chief financial officer of the Borrower’s filings with , confirming that the Securities Borrower and Exchange Commission prior its Subsidiaries (on a consolidated basis) are, and the Loan Parties (on a consolidated basis) are, Solvent before and after giving effect to the date hereof); andfunding of any Revolving Borrowing to be made on the Closing Date and the consummation of the transactions contemplated to occur on the Closing Date;
(x) such other documentsthe Guaranty Agreement, certificates duly executed by each Loan Party;
(xi) copies of UCC, tax, judgment and fixture lien search reports in all necessary or information appropriate jurisdictions and under all legal and trade names of the Loan Parties as requested by the Joint Lead Arrangers may reasonably requestAdministrative Agent;
(xii) a duly executed payoff letter, all in form and substance satisfactory to the Administrative Agent, in connection with the Existing Credit Agreement, with confirmation to the Administrative Agent to its satisfaction that the Existing Credit Agreement shall have been terminated, all commitments of the lenders thereunder to fund additional advances shall have been terminated, and all amounts outstanding thereunder, together with all accrued and unpaid interest, fees and other amounts shall have been paid in full on the Closing Date, together with any releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of Indebtedness owed pursuant to the Existing Credit Agreement;
(xiii) a copy of the complete currently effective investment policy of each Loan Party and each Insurance Subsidiary (which investment policy shall be reasonably satisfactory to the Joint Lead Arrangers.Administrative Agent and the Lenders);
(cxiv) To the extent requested by the Administrative Agent in writing not less than at least five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that required by bank regulatory authorities or reasonably requested by the Administrative Agent reasonably believes is required by regulatory authorities or any Lender under or in respect of applicable “know-your-know your customer” and anti-money laundering rules and regulations, Legal Requirements including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Dateand, to the extent the if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to Borrower; and
(xv) certificates of insurance, in form and detail acceptable to the BorrowerAdministrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed LEGAL02/42400466v16 to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 1 contract
Sources: Credit Agreement (Skyward Specialty Insurance Group, Inc.)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2).5
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or Truist Securities (including the Joint Lead ArrangersFee Letter).
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed Notes payable to each Lender requesting a note (A) including the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Swingline Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and feesSwingline Lender), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) the Subsidiary Guaranty Agreement duly executed by each Subsidiary Loan Party;
(iv) the Security Agreement duly executed by the Borrower and each Subsidiary Loan Party;
(v) the Pledge Agreement duly executed by the Borrower and each Subsidiary Loan Party;
(vi) copies of duly executed payoff letters, in form and substance satisfactory to Administrative Agent, executed by each holder of existing Indebtedness or the agent thereof, and a Perfection Certificate (as defined in the Security Agreement) with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower; together with (a) the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons and in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property or do business, together with copies of the financing statements (or similar documents) disclosed by such search, (b) UCC-3 or other appropriate termination statements, in form and substance satisfactory to Administrative Agent, releasing all liens of such holders or agent upon any of the personal property of the Borrower and its Subsidiaries and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent to evidence the payoff of such Indebtedness;
(vii) Reserved;
(viii) a certificate of the Secretary or Assistant Secretary of each Loan Party in form and substance acceptable to the Borrower in the form of Exhibit 3.1(b)(iii)Administrative Agent, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit Documents;Loan Documents to which it is a party; ______________________ 5 Conditions set forth in Section 3.1 were satisfied, and the Closing Date occurred, on November 8, 2012.
(ivix) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party;
(vx) a Reserved;
(xi) favorable written opinion of inside or outside Hogan Lovells US LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vixii) a certificate certificate, in form and substance acceptable to the form of Exhibit 3.1(b)(vi)Administrative Agent, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (or, if qualified by materiality, in all respects) and (Cz) since September 30December 31, 20202011, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viixiii) if a Borrowing will with respect to any Loan to be made funded on the Closing Date, if any, a duly executed Notice of Borrowing and Borrowing;
(xiv) with respect to any Loan to be funded on the Closing Date, if any, a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofof the Loans to be disbursed on the Closing Date;
(viiixv) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery and performance of the Loan Documents by each Loan Party, and the validity and enforceability of the Loan Documents against each Loan Party or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Loans or any transaction being financed with the proceeds thereof shall be ongoing;
(ixxvi) Reserved;
(xvii) copies of the consolidated and consolidating balance sheets, income statements, cash flows and operating budget of the Borrower setting forth projections for the five Fiscal Years next succeeding the Closing Date, and setting forth in reasonable detail the assumptions underlying such projections;
(xviii) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter Fiscal Quarter ending on December 31September 30, 2020 2012, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Years ending December 31, 2008, December 31, 2009, December 31, 2010, and December 31, 2011;
(xix) a duly completed and executed Compliance Certificate of the Borrower, including pro forma calculations of the financial covenants set forth in Article 6 (other than Section 6.3) hereof as of September 30, 2020 2012;
(it being agreed that this clause (ixxx) is satisfied a copy of, or a certificate as to coverage under, the insurance policies required by the Borrowerapplicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s filings with loss payable endorsement and to name the Securities Administrative Agent as additional insured, in form and Exchange Commission prior substance satisfactory to the date hereof)Administrative Agent;
(xxi) Reserved; and
(xxxii) such other documents, certificates or information as the Joint Lead Arrangers Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead ArrangersAdministrative Agent or the Required Lenders.
(c) To The Administrative Agent shall have received (i) to the extent required by the Pledge Agreement, the certificates representing the shares of Capital Stock pledged pursuant to the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the Borrower or the applicable Subsidiary Loan Party, as pledgor; (ii) to the extent required by the Security Agreement, the certificates representing the shares of Capital Stock pledged 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 and (iii) to the extent required by the Security Agreement or the Pledge Agreement, each promissory note pledged to the Administrative Agent pursuant to the Pledge Agreement and the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank satisfactory to the Administrative Agent) by the pledgor thereof.
(d) Each document (including, without limitation, any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in writing not less than five (5) Business Days prior order to the Closing Date, create in favor of the Administrative Agent shall have receivedAgent, not later for the benefit of the Lenders, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required Liens permitted by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulationsSection 7.2), including without limitation the Patriot Act (as defined below)shall be in proper form for filing, registration or recordation.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Conditions to Effectiveness. The obligations effectiveness of this Agreement, and the Lenders willingness of each Lender to make Loans hereunder hereunder, shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.28.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including (i) reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement the Fee Letter and (ii) the upfront fees payable to the Lenders in accordance with the Administrative Agent or the Joint Lead ArrangersFee Letter.
(b) The Administrative Agent (or its counsel) shall have received the following, each in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Subordinated Term Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” each Lender in respect of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementTerm Loans;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, authorizing the execution, delivery and performance of the Credit Loan Documents and certifying the name, title and true signature of each officer of the Borrower executing the Credit Loan Documents;
(iva) certified copies a copy of the articles or certificate of incorporation charter of the Borrower, together with certificates certified by the appropriate Governmental Authority and (b) a certificate of good standing or existence, as may be available from existence for the Secretary Borrower issued by the Georgia Department of State of the jurisdictions of organization of the BorrowerBanking and Finance;
(v) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each of the LendersLenders, and covering such matters relating to the Borrower, the Credit Parent, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requesttherein, that are set forth in Exhibit 3.1(b)(v);
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Aw) no Default or Event of Default exists, (Bx) all representations and warranties of the Borrower set forth in the Credit Loan Documents are true and correct in all material respects correct, and (Cy) since September 30, 2020the date of the financial statements of the Parent described in Section 4.4, there shall have been no material adverse change in the businesschange, condition (financial event or otherwise), operations, liabilities (contingent other circumstance which has had or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(vii) if a Borrowing will certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made on or obtained under any applicable laws in connection with the Closing Dateexecution, a duly executed Notice of Borrowing delivery, performance, validity and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Commitments or any transaction being financed with the proceeds hereofthereof shall be ongoing;
(viii) [Reserved.];a duly executed copy of the Call Report of the Borrower most recently available as of the Closing Date, and
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information agreements and instruments as the Joint Lead Arrangers Administrative Agent on behalf of the Lenders may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Subordinated Term Loan Agreement (United Community Banks Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder This Agreement shall not become effective effective, the Existing Credit Agreement shall remain in full force and effect, Borrower shall not have any rights under this Agreement and Administrative Agent and Lenders shall not be obligated to take, fulfill or perform any action hereunder, until the date on which each of the following conditions is satisfied have been fulfilled to the satisfaction of Administrative Agent and Lenders (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, duly executed Revolving Credit Notes payable to such Lender and the Swingline Note payable to the Swingline Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this duly executed Subsidiary Guaranty Agreement, the Holdings Guaranty Agreement and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Indemnity and Contribution Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party;
(vvi) a favorable written opinion of inside or outside Snell & Wilmer, L.L.P., counsel to the BorrowerLoan Parties, addressed addre▇▇▇▇ to the Administrative ▇▇ministrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiix) [Reserved.];certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired; and
(ixxi) copies of (A) the internally prepared quarterly financial statements of the Borrower Holdings and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December Fiscal Quarter ended March 31, 2020 2004, and (B) the audited consolidated financial statements for the Borrower Holdings and its Subsidiaries subsidiaries for the fiscal year ending September 30Fiscal Years ended December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2001, December 31, 2002 and Exchange Commission prior to the date hereof)December 31, 2003; and
(xxii) such other documentscertificates of insurance issued on behalf of insurers of the Borrower and all guarantors, certificates or information as describing in reasonable detail the Joint Lead Arrangers may reasonably request, all in form types and substance reasonably satisfactory to the Joint Lead Arrangers.
amounts of insurance (cproperty and liability) To the extent requested maintained by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, Borrower and all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)guarantors.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Swift Transportation Co Inc)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The On the Funding Date, the Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable (other than those previously paid on or prior to the Closing Execution Date), including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) on or prior to the Execution Date, a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days on or prior to the Closing Funding Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementduly executed Notes payable to such Lender;
(iii) on or prior to the Execution Date, a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)Borrower, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Credit DocumentsLoan Documents to which it is a party;
(iv) on or prior to the Execution Date, certified copies of the articles or certificate of incorporation or other charter documents of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the BorrowerBorrower and the jurisdiction where the Borrower has its principal place of business;
(v) on or prior to the Execution Date, a favorable written opinion of inside or outside Nelson, Mullins, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P., counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, substantially in the form attached hereto as Exhibit F-1 hereof, and covering such matters relating a favorable written opinion of the general counsel of the Borrower addressed to the Borrower, the Credit Documents and the transactions contemplated therein as the Administrative Agent or and each of the Required Lenders shall reasonably requestLenders, substantially in the form attached hereto as Exhibit F-2;
(vi) on or prior to the Execution Date, a certificate termination letter in form and substance satisfactory to the form Administrative Agent evidencing, among other things, that the existing Amended and Restated Revolving Credit Agreement dated as of Exhibit 3.1(b)(vi)July 6, 2001 will terminate upon the payment in full of all outstanding obligations thereunder (other than contingent obligations which expressly survive termination of such agreement) and the satisfaction of all other conditions to the Funding Date set forth herein;
(vii) on the Funding Date, a certificate, dated the Closing Funding Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties Responsible Officer of the Borrower Borrower, confirming, among other things, compliance with the conditions of Section 3.1 and compliance with the conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofSection 3.2;
(viii) [Reserved.]on or prior to the Funding Date, duly executed Notices of Borrowing, if applicable;
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission or prior to the date hereof)Funding Date, delivery of certified copies of all consents, approvals, authorizations, registrations, or filings required to be made or obtained by the Borrower in connection with the Loan Documents, and the other transactions contemplated herein;
(x) on or prior to the Funding Date, delivery of a certified copy of the Indenture and evidence satisfactory to the Administrative Agent that at least $200,000,000 in gross amount of Indebtedness has been (or is contemporaneously being) issued by Borrower pursuant to such Indenture, the net proceeds of which have been (or are contemporaneously being) delivered to Borrower; and
(xxi) Administrative Agent shall have received such other documents, certificates or information with respect to the Borrower as it or the Joint Lead Arrangers Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior No actions, suits or other legal proceedings shall be pending or, to the Closing Dateknowledge of the Borrower, the Administrative Agent shall have receivedthreatened, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to against or affecting the Borrower that or any of its Consolidated Subsidiaries (i) which singly, or in the Administrative Agent aggregate, could be reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation expected to have a Material Adverse Effect or (ii) which seek to enjoin or restrain the Patriot Act (as defined below)consummation of the Loan Documents or the Indenture.
(d) At least five Since December 31, 2002, there shall have occurred no events, acts, conditions or occurrences of whatever nature, singly or in the aggregate, that have had, or are reasonably expected to have, a Material Adverse Effect.
(5e) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the The Borrower shall deliver have a Beneficial Ownership Certification in relation to the BorrowerSenior Debt Rating of at least Baa2 issued by ▇▇▇▇▇'▇.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Arrangers and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement and each other Loan Document signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this AgreementAgreement or such Loan Document;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement (or a certificate from the Secretary or Assistant Secretary of each Subsidiary Guarantor certifying that such have documents not been amended since last delivered under the Existing Term Loan Agreement and remain in full force and effect), and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party (or a certificate from the BorrowerSecretary or Assistant Secretary of each Subsidiary Guarantor certifying that such certificates have not been amended since last delivered under the Existing Term Loan Agreement and remain in full force and effect), together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party;
(viv) a favorable written opinion of inside or outside Morris, Manning & Martin, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders);
(viv) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the Term Loans on the Closing Date, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of such date, with the same effect as if made at and as of that date, except to the extent that such representations and warranties related solely to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date) and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition which has had or could reasonably be expected to have a Material Adverse Effect;
(financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholevi) [Intentionally Omitted];
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated and unaudited consolidating financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30Fiscal Year ended December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and2023;
(x) a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI as of December 31, 2023, calculated on a pro forma basis as if the Term Loans had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such other documentscalculations);
(xi) a certificate, certificates or information as dated the Joint Lead Arrangers may reasonably requestClosing Date and signed by the chief financial officer of each Loan Party, all in form confirming that each Loan Party is Solvent before and substance reasonably satisfactory after giving effect to the Joint Lead Arrangers.funding of the Term Loans and the consummation of the transactions contemplated to occur on the Closing Date;
(cxii) To copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, to the extent requested by the Administrative Agent Agent, indicating that there are no prior Liens on any of the Unencumbered Properties other than Permitted Encumbrances or the direct and indirect Equity Interests in writing each Unencumbered Property Owner other than Permitted Encumbrances set forth in clause (i) of such definition;
(xiii) Subsidiary Guarantor Organizational Deliverables with respect to all Guarantors that are not less than five (5) Business Days prior to “Guarantors” under the Existing Term Loan Agreement as of the Closing Date, ;
(xiv) reasonably satisfactory evidence that all obligations owed to Exiting Lenders under the Administrative Agent Existing Term Loan Agreement shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).been paid in full;
(dxv) At [Intentionally Omitted]; and
(xvi) at least five (5) days prior to the Closing Datedate of this Agreement, to all documentation and other information required by bank regulatory authorities or reasonably requested by the extent Administrative Agent or any Lender under or in respect of applicable “know your customer” and anti-money laundering Legal Requirements including the Patriot Act and, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to Borrower. Without limiting the Borrowergenerality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 1 contract
Conditions to Effectiveness. The obligations obligation of the Lenders Lender to make Loans hereunder the Loan shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).):
(a) The Administrative Agent and the Joint Lead Arrangers Lender shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of Lender (including reasonable fees, charges and disbursements of counsel to the Administrative AgentLender) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Document Loan Document, and under any other agreement with the Administrative Agent or the Joint Lead ArrangersLender.
(b) The Administrative Agent Lender (or its counsel) shall have received the following, each to be in form and substance satisfactory to Lender:
(i) a counterpart of this Agreement each of the Loan Documents signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed signature page of this Agreement) that such party has signed a counterpart of this Agreementparties thereto;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of [▇▇▇▇▇▇▇▇][each Loan Party], and the members of Borrower in to the form of Exhibit 3.1(b)(iii)extent requested by ▇▇▇▇▇▇, attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower [▇▇▇▇▇▇▇▇][such Loan Party] executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of [Borrower][each Loan Party], and the Borrowermembers of Borrower to the extent requested by ▇▇▇▇▇▇, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of [Borrower][such Loan Party] or the Borrowerapplicable member of Borrower and each other jurisdiction where such party is required to be qualified to do business as a foreign corporation;
(viv) a favorable written opinion of inside or outside counsel to the Borrower[Borrower ][Loan Parties], addressed to the Administrative Agent and each of the Lenders▇▇▇▇▇▇, and covering such matters relating to the Borrower[Borrower][Loan Parties], the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders Lender shall reasonably request;
(viv) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the Loan, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth ;
(vii) the sources and uses of the proceeds hereofTitle Insurance Policy;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements current “as-built” survey of the Borrower and its Subsidiaries on Property, dated or updated to a consolidated basis for the fiscal quarter ending on December 31, 2020 and date not earlier than thirty (B30) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all certified to Lender and the title insurer, prepared by a surveyor licensed in the State of [______] acceptable to Lender and the issuer of the mortgagee title insurance policy, and conforming to Lender’s current standard survey requirements;
(ix) appropriate information on the past and present environmental, health and safety conditions at the Property, including without limitation a Phase I environmental site assessment report for the Property that (x) complies with the most recent ASTM 1527 standard, and (y) is prepared by an environmental consultant acceptable to Lender, and any further environmental assessment, testing, analysis, or reporting deemed necessary or desirable by Lender and showing results satisfactory to Lender. Lender may, based on site conditions, require appropriate documentation from an appropriate Governmental Authority on the current status and other information future activities and actions concerning environmental conditions at the Property;
(x) a current engineering report or property condition report with respect to the Borrower that Property, covering, among other matters, inspection of heating ventilation, air conditioning and any other base building systems, roof and structural details and showing no failure of compliance with building plans and specifications, Applicable Laws (including requirements of the Administrative Agent reasonably believes is required Americans with Disabilities Act, as amended) and fire safety and health standards;
(xi) an appraisal of the Property performed by regulatory authorities under applicable an M.A.I. appraiser acceptable to Lender (an “know-your-customerAppraisal”) which indicates a minimum leased fee value “as is” of $________________;
(xii) an update to existing zoning letter or zoning report, dated not more than (30) days prior to the Closing Date, certified to Lender;
(xiii) copies of property and anti-money laundering rules liability insurance policies maintained by Borrower, conforming to the requirements of Exhibit 5.5 hereof and regulationsotherwise in form and detail acceptable to Lender, including without limitation in each case naming Lender as loss payee or additional insured, as the Patriot Act case may be, together with a lender’s loss payable endorsement in form and substance satisfactory to Lender;
(xiv) flood hazard certification with respect to the Property, and, if applicable, evidence of flood insurance coverage conforming to the requirements of Exhibit 5.5 hereof, along with an executed Certificate of Flood Insurance Compliance in the form attached hereto as defined below)Exhibit 3.1.
(xv) [a current rent roll of the Property, certified by Borrower, which rent roll shall include the following information: (a) Tenant names; (b) unit/suite numbers; (c) area of each demised premises and total area of the Property (stated in net rentable square feet); (d) At rental rate (including escalations) (stated in gross amount and in amount per net rentable square foot per year); (e) Lease term (commencement, expiration and renewal options); (f) real property tax or common area and maintenance expense pass-throughs; (g) cancellation/termination provisions; (h) security deposit; and (i) material operating covenants and co-tenancy clauses. In addition, Borrower shall provide Lender with true and correct copies of all leases of the Property]25;
(xvi) copy of the most recent tax bill for the Property;
(xvii) copies of service contracts;
(xviii) [estoppel certificates and subordination, non-disturbance and attornment agreements from ______________];
(xix) copies of existing certificates of occupancy for the Property;
(xx) a copy of the Management Agreement for the Property, certified by ▇▇▇▇▇▇▇▇ as being true, correct and complete;
(xxi) copies of duly executed payoff letters, in form and substance satisfactory to Lender, executed by any existing lender, together with (i) UCC‑3 or other appropriate termination statements, in form and substance satisfactory to Lender, releasing all liens of any existing lenders upon any of the personal property of Borrower, (ii) cancellations and releases, in form and substance satisfactory to Lender, releasing all liens of any existing lender upon the Property, and (iii) any other releases, terminations or other documents reasonably required by Lender to evidence the payoff of Indebtedness secured by the Property; and
(xxii) at least five (5) days prior to the Closing Datedate of this Agreement, to all documentation and other information required by bank regulatory authorities or reasonably requested by Lender under or in respect of applicable “know your customer” and anti-money laundering legal requirements including the extent the Patriot Act and, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
(c) [Lender shall have confirmed that the maximum amount of the Loan shall not [(i) result in a ratio of Net Operating Income divided by Debt Service of less than [_________] or (ii) result in a Debt Yield of less than _______%]. [For purposes of this clause (c) only, “Net Operating Income” will be based on [insert any applicable term sheet adjustments].]
(d) [▇▇▇▇▇▇ shall have received reasonably satisfactory evidence of ▇▇▇▇▇▇▇▇’s satisfaction of the Equity Maintenance Requirement.]26
Appears in 1 contract
Sources: Term Loan Agreement
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, duly executed Revolving Credit and/or Competitive Bid Notes payable to such Lender and the Swingline Note payable to the Swingline Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under duly executed Subsidiary Guaranty Agreement and Indemnity and Contribution Agreement, executed by each Material Subsidiary and acknowledged by the Existing Credit Agreements to the Administrative Agent three Business Days prior to Borrower; provided, however, that for any Subsidiary that becomes a Material Subsidiary after the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will this obligation shall be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementonly as provided in Section 5.10;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company operating agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation and a failure to be so qualified would have a Material Adverse Effect;
(vvi) a favorable written opinion of inside or outside counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and Revolving Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiix) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(ixxi) copies of (A) the internally prepared quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending Fiscal Quarter ended on December 31April 30, 2020 2004, and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30Fiscal Years ended 2002, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities 2003 and Exchange Commission prior to the date hereof)2004; and
(xxii) such other documentscertificates of insurance issued on behalf of insurers of the Borrower and all guarantors, certificates or information as describing in reasonable detail the Joint Lead Arrangers may reasonably request, all in form types and substance reasonably satisfactory to the Joint Lead Arrangers.
amounts of insurance (cproperty and liability) To the extent requested maintained by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, Borrower and all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)guarantors.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Conditions to Effectiveness. The amendment and restatement of the Existing Credit Agreement by this Agreement, the obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, the Sole Lead Arranger and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Sole Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) any promissory notes requested by the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements Lenders pursuant to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and feesSection 2.10(b), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a Reaffirmation of Guaranty and Security Agreement substantially in the form of Exhibit 3.1(b)(iii), duly executed by the Borrower and the other Loan Parties (other than CHCT Maryland, LLC) (the “Reaffirmation of Guaranty and Security Agreement”);
(iv) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party (other than CHCT Maryland, LLC) substantially in the form of Exhibit 3.1(b)(iii3.1(b)(iv), (A) attaching and certifying copies of (1) its bylaws bylaws, partnership agreement, limited liability company agreement or comparable organizational document, and of (2) the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and (B) certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party (other than CHCT Maryland, LLC), together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PC, counsel to the BorrowerLoan Parties (including Maryland counsel to the REIT Guarantor), addressed to the Administrative Agent Agent, the Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties (other than CHCT Maryland, LLC), the Credit Documents Loan Documents, the Collateral and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate substantially in the form of Exhibit 3.1(b)(vi3.1(b)(vii), dated the Closing Date and signed by a Financial OfficerResponsible Officer and the chief financial officer of the REIT Guarantor and the Borrower, certifying that that, after giving effect to the funding of all Borrowings, the issuance of any initial Letters of Credit, and the consummation of the transactions contemplated to occur on the Closing Date (including the execution and delivery of the Loan Documents), (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects (or in the case of representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality qualifier, in all respects) and (C) since September 30each Loan Party (other than CHCT Maryland, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeLLC) is Solvent;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and for any initial Revolving Borrowing or Swingline Borrowing;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereofof any such initial Borrowing;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) a duly completed and executed Compliance Certificate, including calculations of the Financial Covenants hereof as of December 31, 2016, calculated on a pro forma basis as if any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such other calculations);
(xi) all documents, reports, certificates or and other information as requested by Administrative Agent in connection with the Joint Lead Arrangers may reasonably requestinitial Unencumbered Pool Properties set forth on Schedule 4.18 and the determination to include such Properties in the initial Unencumbered Pool Value hereunder (which shall include, all in form and substance reasonably satisfactory at a minimum, each item required pursuant to Section 3.4 hereof not previously delivered to the Joint Lead Arrangers.Administrative Agent);
(cxii) To copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party (other than CHCT Maryland, LLC), by the extent REIT Guarantor, the Borrower or any of their respective Subsidiaries in connection with the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(xiii) copies of all Material Agreements requested by Administrative Agent;
(xiv) if requested by the Administrative Agent Agent, certificates of insurance, in writing not less than five (5) Business Days prior form and detail acceptable to the Closing DateAdministrative Agent, describing the Administrative Agent shall have receivedtypes and amounts of insurance (property and liability) maintained by any of the Loan Parties (other than CHCT Maryland, not later than two LLC);
(2xv) calendar days prior to the Closing Date, copies of all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities any Governmental Authority under the Patriot Act and other applicable “know-your-know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).laws; and
(dxvi) At least five (5) days all such other documents, certificates and information as the Administrative Agent or the Required Lenders shall have reasonably requested. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required hereunder to be consented to, 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, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the BorrowerDate specifying its objection thereto.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2). The Administrative Agent and the Borrower shall execute a notice confirming the satisfaction of such conditions and the occurrence of the Closing Date.
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust Capital Markets, Inc., as Arranger.
(b) The Administrative Agent shall have completed and be satisfied with all due diligence with respect to the Borrower and its Subsidiaries, including but not limited to review of the Underwriting Policies, risk management procedures, accounting policies, systems integrity, compliance, management and organizational structure, and the loan and investment portfolio of the Borrower and its Subsidiaries;
(c) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements a duly executed Treasury Revolving Note payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender;
(iii) duly executed originals of any Control Agreement with respect to Cash Collateral held with any financial institution other than Agent or its affiliates.
(iv) the duly executed Security Agreement and duly executed Guaranty Agreement, together with other applicable documents under the laws of the jurisdictions with respect to the perfection of the Liens on Cash Collateral granted under the Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly executed by the Borrower;
(v) a certificate of the Secretary or Assistant Secretary of each Loan Party in a form satisfactory to the Borrower in the form of Exhibit 3.1(b)(iii)Administrative Agent, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(viii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.]Material Adverse Effect;
(ix) certified copies of (A) all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, if any, in connection with the quarterly financial statements execution, delivery, performance, validity and enforceability of the Borrower Loan Documents or any of the transactions contemplated thereby, and its Subsidiaries on such consents, approvals, authorizations, registrations, filings and orders, if any, shall be in full force and effect and all applicable waiting periods shall have expired and no investigation or inquiry by any governmental authority regarding the Loan Documents or any transaction being financed with the proceeds thereof shall be ongoing;
(x) a consolidated basis for certificate, dated the fiscal quarter ending on December 31Closing Date and signed by the chief financial officer of each Loan Party, 2020 confirming the solvency of each Loan Party before and after giving effect to all transactions contemplated by the Loan Documents, together with the Projections;
(Bxi) copies of the audited consolidated financial statements for the Borrower and its Subsidiaries subsidiaries for the fiscal year Fiscal Year ending September 30December 31, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and2005;
(xxii) such certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all other documentsmaterial agreements, certificates documents and instruments to which any Loan Party or information as the Joint Lead Arrangers may reasonably requestany of its assets are bound, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).Agent;
(dxiii) At least five duly executed Intercreditor Agreement; and
(5xiv) days prior to duly executed copy of the Closing Date, to Investment Credit Agreement and the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification documents executed in relation to the Borrowerconnection therewith.
Appears in 1 contract
Sources: Revolving Credit Agreement (NGP Capital Resources CO)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2). The Administrative Agent and the Borrower shall execute a notice confirming the satisfaction of such conditions and the occurrence of the Closing Date.
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersSunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that duly executed originals of any Control Agreement with respect to Cash Collateral held with any financial institution other than Agent or its affiliates.
(Aiii) the Borrower has delivered notice of its termination of commitments duly executed Security Agreement, together with other applicable documents under the Existing Credit Agreements laws of the jurisdictions with respect to the perfection of the Liens on Cash Collateral granted under the Security Agreement, as requested by the Administrative Agent three Business Days prior in order to perfect such Liens, duly executed by the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this AgreementBorrower;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower in a form satisfactory to the form of Exhibit 3.1(b)(iii)Administrative Agent, attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation incorporation, certificate of organization or limited partnership, or other registered organizational documents of the Borrower, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the BorrowerBorrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation;
(vvi) a favorable written opinion of inside or outside ▇▇▇▇▇▇▇▇ & Knight LLP, counsel to the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrower, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the Closing Date and signed by a Financial Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of the Borrower set forth in the Credit Documents are true and correct in all material respects and (C) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a whole;
(vii) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries subsidiaries for the fiscal year Fiscal Year ending September 30December 31, 2020 2010;
(it being agreed that this clause (ixviii) is satisfied by duly executed copy of the Borrower’s filings with Consent and Fifth Amendment to Amended and Restated Revolving Credit Agreement permitting the Securities transactions contemplated herein and Exchange Commission prior to the date hereof)documents executed in connection therewith; and
(xix) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory a fee payable to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent for its own account in writing not less than five (5) Business Days prior an amount equal to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)$125,000.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (NGP Capital Resources Co)
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Banks to issue any Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received payment of all fees fees, expenses and other amounts due and payable on or prior to the Closing Date, including including, without limitation, all fees payable pursuant to the Fee Letter and reimbursement or payment of all out-of-pocket expenses of the Administrative Agent, SunTrust R▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. and their Affiliates (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead Arrangers.
(b) The Administrative Agent (or its counsel) shall have received the following, each to be in form and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf facsimile transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreement;
(iii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party in the form of Exhibit 3.1(b)(iii3.1(b)(ii), attaching and certifying copies of its bylaws bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its boards board of directorsdirectors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(iviii) certified copies of the articles or certificate of incorporation (subject to Section 5.17), certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of such Loan Party (and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation solely to the Borrowerextent that the failure to be so qualified as a foreign corporation in such other jurisdiction could result in a Material Adverse Effect);
(viv) a favorable written opinion of inside or outside (A) Tin K▇▇ ▇▇▇ Law Offices, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably requestrequest (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Banks and the Lenders), (B) B▇▇▇▇ ▇▇▇▇ LLP, addressed to the Administrative Agent, each Issuing Bank and each of the Lenders, and covering certain matters relating to the Investment Company Act of 1940, as amended and (C) Tin K▇▇ ▇▇▇ Law Offices, counsel to AP-AMH, addressed to the Administrative Agent, each Issuing Bank and each of the Lenders, and covering such matters relating to AP-AMH, the AP-AMH Loan Documents and the transactions contemplated therein as the Administrative Agent shall reasonably request (which opinions will expressly permit reliance by permitted successors and assigns of the Administrative Agent, the Issuing Banks and the Lenders);
(viv) a certificate in the form of Exhibit 3.1(b)(vi3.1(b)(v), dated the Closing Date and signed by a Financial Responsible Officer, certifying that after giving effect to the funding of the Term Loans and any initial Revolving Borrowing, (Ax) no Default or Event of Default exists, (By) all representations and warranties of the Borrower each Loan Party set forth in the Credit Loan Documents are true and correct in all material respects and (Cz) since September 30, 2020the date of the financial statements of the Borrower described in Section 4.4, there shall have been no material adverse change in the business, condition (financial which has had or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as could reasonably be expected to have a wholeMaterial Adverse Effect;
(viivi) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing for the Term Loans and a duly executed funds disbursement agreementany initial Revolving Borrowing, together with a report setting forth the sources and uses of the proceeds hereofthereof;
(vii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents and Related Transaction Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing;
(viii) [Reserved.]copies of the Historical Financial Statements;
(ix) copies of (A) the quarterly financial statements projections of the Borrower and its Subsidiaries (to be made on a consolidated pro forma basis after giving effect to the consummation of the Related Transactions) for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year Fiscal Quarters ending September 30, 2020 2019 and December 31, 2019, and for each Fiscal Year ending thereafter (it being agreed that this clause (ix) is satisfied by through the Borrower’s filings with the Securities and Exchange Commission prior to the date hereofFiscal Year ending December 31, 2023); and;
(x) a duly completed and executed Compliance Certificate, including calculations of the financial covenants set forth in Article VI hereof as of June 30, 2019, calculated on a pro forma basis as if the Term Loans and any initial Revolving Borrowing had been funded as of the first day of the relevant period for testing compliance (and setting forth in reasonable detail such other documentscalculations);
(xi) a certificate, certificates or information as dated the Joint Lead Arrangers may reasonably requestClosing Date and signed by the chief financial officer of each Loan Party, all in form confirming that each Loan Party is Solvent before and substance reasonably satisfactory after giving effect to the Joint Lead Arrangers.funding of the Term Loans and any initial Revolving Borrowing and the consummation of the transactions contemplated to occur on the Closing Date;
(cxii) To the extent Guaranty and Security Agreement, duly executed by the Borrower and each of its Subsidiaries (other than any Excluded Subsidiary), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in writing not less order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by the Administrative Agent, indicating that there are no prior Liens on any of the Collateral other than five (5) Business Days prior Permitted Encumbrances and Liens to be released on the Closing Date, (C) a Perfection Certificate, duly completed and executed by the Borrower, (D) duly executed Patent Security Agreements, Trademark Security Agreements and Copyright Security Agreements, (E) subject to Section 5.17 (if applicable), original certificates evidencing all issued and outstanding shares of Capital Stock of all Subsidiaries owned directly by any Loan Party (or, if the pledge of all of the voting Capital Stock of any Foreign Subsidiary would result in materially adverse tax consequences, limited to 65% of the issued and outstanding voting Capital Stock of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Capital Stock of such Foreign Subsidiary, as applicable) and (F) subject to Section 5.17 (if applicable), stock or membership interest powers or other appropriate instruments of transfer executed in blank;
(xiii) copies of duly executed payoff letters, in form and substance satisfactory to the Administrative Agent, executed by each of the Existing Lenders or the administrative agent thereof, together with (a) UCC-3 or other appropriate termination statements, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the personal property of the Borrower and its Subsidiaries, (b) cancellations and releases, in form and substance satisfactory to the Administrative Agent, releasing all liens of the Existing Lenders upon any of the real property of the Borrower and its Subsidiaries, and (c) any other releases, terminations or other documents reasonably required by the Administrative Agent shall have received, not later than two (2) calendar days prior to evidence the payoff of Indebtedness owed to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).Existing Lenders;
(dxiv) At at least five (5) days prior to the Closing Datedate of this Agreement, to all documentation and other information required by bank regulatory authorities or reasonably requested by the extent Administrative Agent or any Lender under or in respect of applicable “know your customer” and anti-money laundering legal requirements including the Patriot Act and, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to Borrower;
(xv) certified copies of all Material Agreements (including, for the avoidance of doubt, the Associated Practice Documents);
(xvi) certificates of insurance, in form and detail acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming the Administrative Agent as loss payee or additional insured, as the case may be, together with a lender’s loss payable endorsement in form and substance satisfactory to the Administrative Agent;
(xvii) the Closing Date Collateral Assignments;
(xviii) evidence that the Borrower shall have filed a UCC-1 financing statement to perfect its security interest in the collateral securing the AP-AMH Loan, and such UCC-1 financing statement shall name the Administrative Agent as an “additional secured party”;
(xix) a duly executed Transfer Restriction Agreement granted and delivered by T▇▇▇▇▇ ▇▇▇, M.D., in his capacity as the sole shareholder of APC-LSMA Designated Shareholder Medical Corporation, in favor of NMM and the Borrower; and
(xx) a second amendment to the Management Services Agreement in order to relinquish control over the account that receives payment from Third Party Payor Programs.
(c) All conditions precedent to the consummation of the Related Transactions, other than the funding of the Loans, shall have been satisfied, and the Related Transactions shall be consummated simultaneously with the closing and funding of the Loans in accordance with the terms of the Related Transaction Documents, without alteration, amendment or other change, supplement or modification of the Related Transaction Documents except for waivers of conditions that are not material or adverse to the Lenders or as otherwise approved in writing by the Required Lenders. The Administrative Agent (or its counsel) shall have received certified copies of the Related Transaction Documents, each in form and substance satisfactory to the Administrative Agent and the Arranger. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Agreement shall be deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, 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.
Appears in 1 contract
Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint SunTrust Capital Markets, Inc., as Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf electronic mail transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that (A) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements duly executed Notes payable to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest and fees), or will be repaid substantially concurrently with the closing of this Agreement, and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Agreementeach Lender;
(iii) duly executed Subsidiary Guarantee Agreements and Indemnity and Contribution Agreements;
(iv) duly executed Security Documents, all lien searches and evidence of perfection of the liens evidenced by the Security Documents;
(v) a certificate of the Secretary or Assistant Secretary an authorized officer of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation or other organizational documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(vvii) a favorable written opinion of inside or outside Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in of Section 3.2;
(ix) insurance certificates evidencing the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects existing insurance coverage of the Borrower and its subsidiaries taken as a wholeSubsidiaries;
(viix) if a Borrowing will be made on the Closing Date, a duly executed Notice Notices of Borrowing and Borrowing, if applicable; and
(xi) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viii) [Reserved.];
(ix) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending September 30, 2020 (it being agreed that this clause (ix) is satisfied by the Borrower’s filings with the Securities and Exchange Commission prior to the date hereof); and
(x) such other documents, certificates or information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below).
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (American Healthways Inc)
Conditions to Effectiveness. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.210.2).
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto thereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that a duly executed Note payable to each Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest a duly executed Subsidiary Guarantee Agreement and fees), or will be repaid substantially concurrently with the closing of this Agreement, Indemnity and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Contribution Agreement;
(iiiiv) [intentionally omitted];
(v) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party, substantially in the form of Exhibit 3.1(b)(iii3.1(b)(v), attaching and certifying copies of its bylaws and of the resolutions of its boards board of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivvi) certified copies of the articles or certificate of incorporation incorporation, certificate of the Borrowerorganization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization of the Borrowersuch Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign entity;
(vvii) a favorable written opinion of inside (x) ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., General Counsel of the Loan Parties or (y) outside counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(viviii) a certificate certificate, substantially in the form of Exhibit 3.1(b)(vi3.1(b)(viii), dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (c), (d) and (Ce) of this Section 3.1 including a representation that no event or condition has occurred since September 30, 2020, there shall the last audited financial statements which would have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeMaterial Adverse Effect;
(viiix) if a Borrowing will be made on the Closing Date, a duly executed Notice of Borrowing and a duly executed funds disbursement agreement, together with a report setting forth respect to the sources and uses of the proceeds hereofTerm Loans;
(viiix) [Reserved.]certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any contractual obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(ixxi) copies of (A) the quarterly consolidated financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31years ended 2012, 2020 2013, and 2014, including balance sheets, income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP, and such other financial information as the Administrative Agent may reasonably request;
(Bxii) confirmation that no litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is pending against or, to the audited consolidated financial statements for knowledge of the Borrower, threatened against the Borrower or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect;
(xiii) all information the Administrative Agent and each Lender may request with respect to the Borrower and its Subsidiaries for in order to comply with the fiscal year ending September 30USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2020 2001)) (it being agreed that this clause the “Patriot Act”) and any other “know your customer” or similar laws or regulations;
(ixxiv) is satisfied certificates of insurance issued on behalf of insurers of the Borrower and all guarantors, describing in reasonable detail the types and amounts of insurance (property and liability) maintained by the Borrower’s filings Borrower and all guarantors, naming the Administrative Agent as additional insured in the case of liability insurance;
(xv) a duly executed amendment to the Existing Revolving Credit Agreement permitting the Commitments and Indebtedness under this Agreement, together with evidence that such amendment has (or, concurrently with the Securities and Exchange Commission prior to the date hereof)effectiveness of this Agreement, will) become effective; and
(xxvi) evidence that, consistent with Section 5.11, the Borrower has purchased Farm Credit Equities in American AgCredit, PCA and executed American AgCredit, PCA’s standard Membership Agreement;
(c) at the time of and immediately after giving effect to the funding of the Term Loans, no Default or Event of Default shall exist;
(d) at the time of and immediately after giving effect to the funding of the Term Loans, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such funding, before and after giving effect thereto;
(e) since the date of the audited financial statements of the Borrower described in Section 4.4, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect; and
(f) the Administrative Agent shall have received such other documents, certificates certificates, information or information legal opinions as the Joint Lead Arrangers Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent or the Required Lenders. Without limiting the generality of the provisions of this Section, for purposes of determining compliance with the conditions specified in writing not less than five (5) Business Days prior this Section, each Lender that has signed this Agreement shall be deemed to the Closing Datehave consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received, not later than two (2) calendar days received notice from such Lender prior to the proposed Closing Date, all documentation Date specifying its objection thereto. The funding of the Term Loans shall be deemed to constitute a representation and other information with respect warranty by the Borrower on the date thereof as to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulationsmatters specified in paragraphs (c), including without limitation the Patriot Act (as defined below).
(d) At least five and (5e) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrowerof this Section 3.1.
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Conditions to Effectiveness. The obligations of the Lenders (including the Swingline Lender) to make initial Loans hereunder and the obligation of the Issuing Bank to issue any initial Letter of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2).10.2):
(a) The Administrative Agent and the Joint Lead Arrangers shall have received all fees and other amounts due and payable on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Credit Loan Document and under any agreement with the Administrative Agent or the Joint BAS, as Lead ArrangersArranger.
(b) The Administrative Agent (or its counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto or written evidence satisfactory to the Administrative Agent (which may include telecopy or .pdf transmission of an executed a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(ii) evidence that if requested by any Lender, the duly executed Notes payable to such Lender;
(Aiii) the Borrower has delivered notice of its termination of commitments under the Existing Credit Agreements to the Administrative Agent three Business Days prior to the Closing Date, (B) all amounts outstanding under the Existing Credit Agreements have been paid (including, without limitation, principal, interest duly executed Subsidiary Guaranty Agreement and fees), or will be repaid substantially concurrently with the closing of this Agreement, Indemnity and (C) the “commitments” of the lenders under the Existing Credit Agreements have been terminated or will be terminated substantially concurrently with the closing of this Contribution Agreement;
(iiiiv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form of Exhibit 3.1(b)(iii)each Loan Party, attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, authorizing the execution, delivery and performance of the Credit Loan Documents to which it is a party and certifying the name, title and true signature of each officer of the Borrower such Loan Party executing the Credit DocumentsLoan Documents to which it is a party;
(ivv) certified copies of the articles or certificate of incorporation or other charter documents of the Borrowereach Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdictions jurisdiction of organization incorporation or formation of such Loan Party and each other jurisdiction as requested by the BorrowerAdministrative Agent;
(vvi) a favorable written opinion of inside or outside Hunton & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, and Scarlett May, General Counsel of the Borrower, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the BorrowerLoan Parties, the Credit Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request;
(vivii) a certificate in the form of Exhibit 3.1(b)(vi)certificate, dated the Closing Date and signed by a Financial Responsible Officer, certifying that (A) no Default or Event of Default exists, (B) all representations and warranties of confirming compliance with the Borrower conditions set forth in the Credit Documents are true and correct in all material respects paragraphs (a), (b) and (Cc) since September 30, 2020, there shall have been no material adverse change in the business, condition (financial or otherwise), operations, liabilities (contingent or otherwise), properties or prospects of the Borrower and its subsidiaries taken as a wholeSection 3.2;
(viiviii) if a Borrowing will be made on the Closing Date, a duly executed Notice Notices of Borrowing and Borrowing, if applicable;
(ix) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(viiix) [Reserved.]a duly executed Fee Letter;
(ixxi) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(xii) copies of (A) the quarterly financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal quarter ending on December 31, 2020 and (B) the audited consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year years ending September 30June 4 2002, 2020 June 3, 2003 and June 1, 2004, including balance sheets, statements of income and statements of cash flow audited by independent public accountants of recognized national standing and prepared in conformity with GAAP and such other financial information as the Administrative Agent may request;
(it being agreed that this clause xiii) certificates of insurance issued on behalf of insurers of the Loan Parties, describing in reasonable detail the types and amounts of insurance (ixproperty and liability) is satisfied maintained by the Borrower’s filings with the Securities Borrower and Exchange Commission prior all guarantors, naming Administrative Agent as additional insured;
(xiv) evidence satisfactory to the date hereof)Administrative Agent that the Existing Credit Agreement has been terminated and all interest, fees and principal accrued thereunder through the Closing Date will be paid in full from the initial Revolving Loans under this Agreement; and
(xxv) such all other documents, certificates or documents and information as the Joint Lead Arrangers may reasonably request, all in form and substance reasonably satisfactory to the Joint Lead Arrangers.
(c) To the extent requested by the Administrative Agent in writing not less than five (5) Business Days prior to the Closing Date, the Administrative Agent shall have received, not later than two (2) calendar days prior to the Closing Date, all documentation and other information with respect to the Borrower that the Administrative Agent reasonably believes is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (as defined below)requests.
(d) At least five (5) days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
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