First Borrowing. On the Closing Date: (a) The Agent shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent. (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Agent. (c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, may reasonably request. (d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01. (e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects. (f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder. (g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
Appears in 1 contract
Sources: 5 Year Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)
First Borrowing. On the Closing Date:
(a) The Administrative Agent and the Lenders shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇LLP, counsel for to the Borrower, Borrower (A) dated the Closing Date and Date, (B) addressed to the BanksAdministrative Agent and the Lenders, and (C) covering such matters relating to the effect set forth in Exhibit D heretoLoan Parties, the Loan Documents and the Transactions as the Administrative Agent or the Required Lenders shall reasonably request, and the Borrower hereby instructs requests such counsel to deliver such opinion to the Agentopinion.
(b) All legal matters incident to this Agreement Agreement, the Borrowings and extensions of credit hereunder and the borrowings hereunder other Loan Documents shall be satisfactory to the Banks Lenders and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Administrative Agent.
(c) The Administrative Agent and the Lenders shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Borrowereach Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws of regulations of the Borrower such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee board of the Board directors of Directors of the Borrower such Loan Party authorizing the execution, delivery and performance of the Loan Documents and to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or the equivalent thereof) of the Borrower such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to sub-clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the Borrowersuch Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to sub-clause (ii) above; and (iv) such other documents as the Banks Lenders or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, Administrative Agent may reasonably request.
(d) The Administrative Agent and the Lenders shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs clauses (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks Administrative Agent and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agent Lenders shall have received all Fees (including the Upfront Fee) and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(f) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Administrative Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(g) The Administrative Agent and the Lenders shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received 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, 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 Required Lenders that the Liens indicated in any such financing statement (or similar document) would be expressly permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(h) The Administrative Agent and the Lenders shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which (i) shall be reasonably acceptable to the Required Lenders and (ii) except as otherwise agreed by the Required Lenders in their sole discretion, 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 Required Lenders.
(i) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Facility shall have been paid (or shall be paid on the Closing Date from the proceeds of the Term Loans) in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent and the Lenders shall have received evidence thereof pursuant to a payoff letter or similar undertaking by the holder of the Existing Credit Facility, in each case, reasonably satisfactory to the Required Lenders. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness (other than Permitted Indebtedness) or preferred stock (other than preferred stock that is Qualified Capital Stock).
(j) The Lenders shall have received the financial statements and opinion referred to in Section 3.05, none of which shall demonstrate a material adverse change in the financial condition of the Borrower from (and shall not otherwise be materially inconsistent with) the financial statements or forecasts previously provided to the Lenders.
(k) The Administrative Agent and the Lenders shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is solvent.
(l) The Administrative Agent and the Lenders shall have received evidence (reasonably acceptable to the Required Lenders) that, as of the Closing Date and immediately after giving pro forma effect to the Transactions, the Qualified Cash shall be equal to at least $7,500,000.
(m) The Borrower shall have delivered to the Administrative Agent a VCOC Information Letter.
(n) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(o) The Administrative Agent and the Lenders shall have received, to the extent requested, at least five Business Days prior to the Closing Date, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from the Borrower and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(p) The Note Subordination Agreement shall have been duly executed by the Note Holders and the other parties thereto and shall be in full force and effect on the Closing Date.
(q) The Administrative Agent and the Lenders shall have received copies of the Note Purchase Agreement, the Notes and the other Note Documents, certified by a Responsible Officer as being complete and correct.
Appears in 1 contract
First Borrowing. On the Closing Date:
(a) Each Lender shall have received a duly executed A Note;
(b) The Administrative Agent shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇either the general counsel or the corporate secretary (provided that such corporate secretary is an attorney admitted to practice law, counsel for and is in good standing, in a jurisdiction within the BorrowerUnited States of America) of the Parent Guarantor, dated the Closing Date and addressed to the BanksLenders, to the effect set forth in Exhibit D E hereto, and the Borrower Parent Guarantor hereby instructs such counsel to deliver such opinion to the Administrative Agent.;
(bc) The Administrative Agent shall have received a favorable written opinion of Milbank, Tweed, Hadley & McCloy, counsel to the Administrative Agent, to ▇▇▇ ▇ffe▇▇ ▇▇▇ forth in Exhibit F hereto;
(d) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks Administrative Agent and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Agent.Lenders;
(ce) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Borrowereach Obligor, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower each Obligor as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Obligor dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws of regulations of the Borrower such Obligor as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors of the Borrower such Obligor Credit Agreement authorizing the execution, delivery and performance of the Loan Documents to which it is a party and (in the case of the Borrower) the borrowings hereunder, and that such 47 43 resolutions have not been modified, rescinded rescinded, or amended and are in full force and effect, (C) that the certificate or articles of incorporation of the Borrower such Obligor have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the Borrowersuch Obligor; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks Administrative Agent or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, Lenders may reasonably request.;
(df) The Administrative Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Parent Guarantor, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.3.01; and
(g) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
Appears in 1 contract
First Borrowing. On the Closing Date:
(a) The Agent This Agreement shall have been duly executed by all of the parties hereto (other than the Banks);
(b) Each Bank shall have received a favorable written opinion duly executed Tranche 1 Note complying with the provisions of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the AgentSection 2.04.
(c) The Agent shall have received the written opinion of Salon, Marrow & ▇▇▇▇▇▇▇, LLP, special counsel to the Borrower and the Guarantors, dated the Closing Date, addressed to the Banks and satisfactory to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent, in the form attached hereto as Exhibit G.
(d) All legal matters incident to the Loans being made on the Closing Date shall be satisfactory to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent.
(e) The Agent shall have received evidence, satisfactory to the Agent, of the maintenance by the Borrower and the Guarantors of the insurance required by Section 5.01(b).
(f) The Agent shall have received evidence, satisfactory to the Agent and to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent, that the Borrower and its Subsidiaries shall have complied in all material respects with all applicable laws, regulations, ordinances, rules and orders of any Governmental Authority, including without limitation all environmental laws, regulations, ordinances, rules and orders.
(g) The Borrower shall have executed such documentation concerning environmental issues as the Agent may request, including indemnification agreements and other documents as shall be satisfactory to the Agent and to Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agent.
(h) The Agent shall have received:
(i) a copy of the articles Borrower's Certificate of incorporation, including all amendments thereto, of the BorrowerIncorporation, certified as of a recent date by the Secretary of State of the state State of its organization, and Delaware;
(ii) a certificate as to the good standing of the Borrower such Secretary of State, dated as of a recent date, from as to the good standing and charter documents of the Borrower on file in the office of such Secretary of State; ;
(iiiii) a certificate of the Secretary or an Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations By-laws of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowsuch certification, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, hereunder and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles Certificate of incorporation Incorporation of the Borrower have has not been amended since the date of the last amendment thereto shown indicated on the certificate of good standing the Secretary of State furnished pursuant to clause (iii) above, above and (D) as to the incumbency and specimen signature of each officer of the Borrower executing any Loan document Document or any other document delivered in connection herewith on behalf or therewith and a certification by another officer of the Borrower as to the incumbency and signature of the Secretary or an Assistant Secretary of the Borrower; ;
(iiiiv) with respect to each Guarantor, a copy of such Guarantor's Certificate of Incorporation, certified by the Secretary of State of Virginia, Delaware or New York, as the case may be;
(v) with respect to each Guarantor, a certificate of another officer such Secretary of State, dated as of a recent date, as to the good standing and charter documents of such Guarantor on file in the office of such Secretary of State;
(vi) with respect to each Guarantor, a certificate of the Secretary or an Assistant Secretary of such Guarantor dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the By-Laws of such Guarantor as in effect on the date of such certification, (B) that attached thereto is a true and complete copy of resolutions adopted by the Board of Directors of such Guarantor and by the Executive Committee of such Board authorizing the execution, delivery and performance of this Agreement, (C) that the Certificate of Incorporation of such Guarantor has not been amended since the date of the last amendment thereto indicated on the certificate of the Secretary of State furnished pursuant to clause (v) above and (D) the incumbency and specimen signature of each officer of such Guarantor executing this Agreement or any other document delivered in connection herewith or therewith and a certification by any other officer of such Guarantor as to the incumbency and signature of the Secretary or an Assistant Secretary executing the certificate pursuant to of such Guarantor; and
(ii) above; and (ivvii) such other documents as the Banks or their counsel or CravathPryor, Swaine & Moor▇Cashman, ▇▇unsel for ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Agent, may reasonably request.;
(di) The Agent Each of the Company's revolving credit agreement with Crestar Bank and the Company's line of credit agreement with Chemical Bank shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby been terminated on or prior to the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.; and
(gj) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
Appears in 1 contract
First Borrowing. On the Closing Date:
(a) The Agent shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Agent.
(c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such 47 43 46 42 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel counsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation cancellation of all commitments thereunder.
(g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)
First Borrowing. On The obligations of the Closing DateLenders in respect of the first Credit Event hereunder is subject to the following additional conditions precedent:
(a) The Agent Lenders shall have received a the favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the BorrowerBorrower and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the Closing Date and Date, addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion satisfactory to the Agent.
(b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Agent.
(c) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive documents, including all amendments theretoin each case as amended to date, of each of the Borrower, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each from the Borrower Secretary of State or other appropriate official of each state in which it is qualified to do business, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower Borrower, each Grantor and each Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy 56 62 of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower or constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Agent or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, any Lender may reasonably request.
(dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02.
(d) Each Lender shall have received its Tranche A Revolving Credit Note and Tranche B Revolving Credit Note duly executed by the Borrower, payable to its order and otherwise complying with the provisions of Section 2.04 hereof.
(e) The representations Agent shall have received the Security Documents and warranties set forth certificates evidencing the Pledged Stock, together with undated stock powers executed in Section 3.06 shall be true and correct in all material respectsblank, each duly executed by the applicable Grantors.
(f) Concurrently with The Agent shall have received certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to the transactions contemplated hereby on the Closing DateLenders of a UCC Reporter Service, listing all effective financing statements which name as debtor the Borrower, any Guarantor or any Grantor and which are filed in the appropriate offices in the states or other applicable Banks jurisdictions in which are located the chief executive office and other operating offices of such person, together with copies of such financing statements or of the security agreements to which such filings relate. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall have executed a side letter whereby all competitive loans under received termination statements in form and substance satisfactory to it.
(g) Each document (including, without limitation, each Uniform Commercial Code financing statement) required by law or reasonably requested by the Existing Credit Agreement shall be deemed Agent to be Competitive Loans hereunder. The Borrower filed, registered or recorded in order to create in favor of the Agent for its own benefit and for the benefit of the Lenders a first priority 57 63 perfected Lien in the Collateral (subject to the Liens permitted by Section 7.01 hereof) shall have repaid been prepared for filing, registration or recordation in full all other amounts due under each jurisdiction in which the Existing Credit Agreement and under each other agreement related theretofiling, registration or recordation thereof is so required or requested, and the Agent shall have received a duly executed documentation either evidencing copy of each such filing, registration or necessary recordation, ready for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunderimmediate filing, registration or recordation.
(gh) The Agent shall have received all Fees the results of a search of tax and other amounts due Liens, and payable on or prior judgments and of the Uniform Commercial Code filings made with respect to the Borrower, each Guarantor and each Grantor in the jurisdictions in which the Borrower, each Guarantor and each Grantor is doing business and/or in which any Collateral is located, and in which Uniform Commercial Code filings have been made against the Borrower, each Guarantor and each Grantor pursuant to paragraph (g) above.
(i) The Lenders and the Agent shall have received and determined to be in form and substance satisfactory to them:
(i) the most recent (dated within thirty (30) days of the Closing Date.) schedule and aging of accounts receivable and inventory designations of the Borrower;
(ii) evidence that the Borrower has raised not less than $100,000,000 in cash net proceeds from an IPO;
(iii) evidence of the compliance by the Borrower with Section 6.03 hereof;
(iv) the financial statements described in Section 4.07 hereof;
(v) evidence that the Transactions are in compliance with all material applicable laws and regulations;
(vi) evidence of payment of all fees owed to the Agent and the Lenders by the Borrower under this Agreement, the Commitment Letter, the Fee Letter or otherwise;
(vii) evidence that all requisite third party consents (including, without limitation, consents with respect to the Borrower and each of the Grantors and Guarantors) to the Transactions have been received;
(viii) copies of all major customer, supplier contracts and employment and non-compete agreements with respect to the Borrower and its subsidiaries;
Appears in 1 contract
Sources: Credit Agreement (American Bank Note Holographics Inc)
First Borrowing. On the Closing Date:
(a) The Agent shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent.
(c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement Agreements shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement Agreements and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement Agreements and each other agreement related thereto and (ii) the cancelation cancellation of all commitments thereunder.
(g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
Appears in 1 contract
First Borrowing. On The obligations of the Closing DateLenders in --------------- respect of the first Credit Event hereunder is subject to the following additional conditions precedent:
(a) The Agent Lenders shall have received a the favorable written opinion opinions of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the BorrowerBorrowers and each of the Guarantors and Grantors, substantially in the form of Exhibit C hereto, dated the Closing Date and Date, --------- addressed to the Banks, to the effect set forth in Exhibit D hereto, Lenders and the Borrower hereby instructs such counsel to deliver such opinion satisfactory to the Agent.
(b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Agent.
(c) The Agent Lenders shall have received (i) a copy of the certificate or articles of incorporationincorporation or constitutive or charter documents, including all amendments theretoin each case as amended to date, of each of the BorrowerBorrowers, the Grantors and the Guarantors, certified as of a recent date by the Secretary of State or other appropriate official of the state of its organization, and a certificate as to the good standing of each from such Secretary of State or other official and from the Borrower Secretary of State or other official in each other jurisdiction where such person is qualified to do business, in each case dated as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Borrower, Grantor and Guarantor, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower such person's By-laws as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions resolution described in clause item (B) below, (B) that attached thereto is a true and complete copy of resolutions duly a resolution adopted by the Executive Committee of the such person's Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the Security Documents, the Notes, the other Loan Documents and the borrowings Credit Events hereunder, as applicable, and that such 47 43 resolutions have resolution has not been modified, rescinded or amended and are is in full force and effect, (C) that the such person's certificate or articles of incorporation of the Borrower have or constitutive documents has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such person's officers executing any Loan document this Agreement, the Notes, each Security Document or any other document Loan Document delivered in connection herewith on behalf of the Borroweror therewith, as applicable; (iii) a certificate of another officer of such person's officers as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveits Secretary; and (iv) such other documents as the Banks Agent or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, any Lender may reasonably request.
(dc) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a the Financial Officer thereofof each Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.015.01 hereof and the conditions set forth in this Section 5.02.
(d) Each Lender shall have received its Revolving Credit Note and Term Note duly executed by the Borrowers, payable to its order and otherwise complying with the provisions of Section 2.04 hereof.
(e) The representations Agent shall have received the Security Documents (including, without limitation, certificates evidencing the Pledged Stock, together with undated stock powers executed in blank, each duly executed by the applicable Grantors and warranties set forth in Section 3.06 shall be true and correct in all material respectsthe Assignment of Life Insurance for an amount not less than $2,000,000 with respect to the keyman life insurance on ▇▇▇▇▇▇ ▇▇▇▇▇▇▇).
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the The Agent shall have executed received certified copies of requests for copies or information on Form UCC-11 or certificates satisfactory to the Lenders of a side letter whereby UCC Reporter Service, listing all competitive loans under effective financing statements which name as debtor, any Borrower or any Grantor and which are filed in the Existing Credit Agreement shall be deemed appropriate offices in the States in which are located the chief executive office and other operating offices of such person, together with copies of such financing statements. With respect to any Liens not permitted pursuant to Section 7.01 hereof, the Agent shall, have received termination statements in form and substance satisfactory to it.
(g) Each document (including, without limitation, each Uniform Commercial Code financing statement and each duly notated certificate of title) required by law or requested by the Agent to be Competitive Loans hereunderfiled, registered or recorded in order to create in favor of the Agent for the benefit of the Lenders a first priority perfected security interest in the Collateral shall, in the sole discretion of the Agent, be delivered in a form such that it can be, or shall previously have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested. The Borrower Agent shall have repaid received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation.
(h) The Agent shall have received the results of a search of tax and other Liens, and judgments and of the Uniform Commercial Code filings made with respect to each Borrower and each Grantor in full all other amounts due under the Existing Credit Agreement jurisdictions in which the Borrower is doing business and/or in which any Collateral is located, and under in which Uniform Commercial Code filings have been made against each other agreement related theretoBorrower, each Guarantor and each Grantor pursuant to paragraph (g) above.
(i) The Lenders and the Agent shall have received duly executed documentation either evidencing or necessary for and determined to be in form and substance satisfactory to them:
(i) the termination most recent (dated within ten (10) days of the Existing Credit Agreement Closing Date) schedule and aging of Receivables and inventory designations of the Borrowers;
(ii) evidence that after giving effect to the Transactions Borrowers have Availability of no less than $5,000,000;
(iii) a copy of a field examination of the books and records of Four Star;
(iv) evidence of the compliance by the Borrowers with Section 6.03 hereof;
(v) the financial statements described in Section 4.07 hereof;
(vi) evidence that the Transactions are in compliance with all applicable laws and regulations;
(vii) the results of all environmental audits and other investigations conducted by or on the behalf of the Borrowers with respect to the Borrowers' and subsidiaries' properties;
(viii) evidence of payment of all fees owed to the Agent and the Lenders by the Borrowers under this Agreement, the Fee Letter or otherwise;
(ix) evidence that all requisite third party consents (including, without limitation, consents with respect to each of the Borrowers and each other agreement related thereto of the Grantors and Guarantors) to the Transactions have been received;
(x) the results of appraisals of the machinery and equipment acquired by the Borrowers (i) pursuant to the Four Star Acquisition and (ii) pursuant to the cancelation Asset Purchase Agreement dated as of October 31, 1997 between MSEI, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Entertainment Resources, Inc. by a person satisfactory to the Agent, such appraisals, when combined with the appraisal of the Borrowers previously delivered to the Agent, shall, in the aggregate, reflect an orderly liquidation value of greater than or equal to $61,500,000, which appraisals have been delivered in form and substance satisfactory to the Agent and the Lenders;
(xi) copies of all commitments thereundermajor customer contracts (including major lease contracts) and major supplier contracts with respect to each Borrower;
(xii) evidence that there has been no material adverse change in the business, assets, operations or financial condition of the Borrowers and subsidiaries since September 30, 1997;
(xiii) evidence that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against or affecting any Borrower or any subsidiary thereof or any of their respective businesses, assets or rights which involve any of the Transactions;
(xiv) copies of all material amendments to any shareholders' agreements; and
(xv) evidence of compliance with Section 6.17 hereof.
(gj) The Agent and the Lenders shall have had the opportunity, if they so choose, to make customer checkings, examine auditor's management letters issued within the three (3) years prior to the Closing Date, the books of account and other records and files of the Borrowers, subsidiaries, the Grantors and the Guarantors and to make copies thereof, and to conduct a pre- closing audit which shall include, without limitation, verification of Eligible Receivables, payment of payroll taxes and accounts payable and formulation of an opening Borrowing Base, and the results of such checkings, examination and audit shall have been satisfactory to the Agent and Lenders in all respects.
(k) The Agent shall have received and had the opportunity to review and determine to be in form and substance satisfactory to it:
(i) copies of all Fees lease agreements, management agreements and consulting agreements entered into by any of the Borrowers and their subsidiaries;
(ii) copies of all loan agreements, notes and other amounts due documentation evidencing Indebtedness for borrowed money of any of the Borrowers, their subsidiaries, Grantors or Guarantors and payable on or prior to schedules of all liens, encumbrances, litigation and contingent liabilities of any of the Closing DateBorrowers; and
(iii) a schedule of Borrowers' Liens, litigations and contingent liabilities.
Appears in 1 contract
First Borrowing. On the Closing Date:
(a) The Administrative Agent and the Lenders shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇LLP, counsel for to the Borrower, Borrower (A) dated the Closing Date and Date, (B) addressed to the BanksAdministrative Agent and the Lenders, and (C) covering such matters relating to the effect set forth in Exhibit D heretoLoan Parties, the Loan Documents and the Transactions as the Administrative Agent or the Required Lenders shall reasonably request, and the Borrower hereby instructs requests such counsel to deliver such opinion to the Agentopinion.
(b) All legal matters incident to this Agreement Agreement, the Borrowings and extensions of credit hereunder and the borrowings hereunder other Loan Documents shall be satisfactory to the Banks Lenders and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Administrative Agent.
(c) The Administrative Agent and the Lenders shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Borrowereach Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws of regulations of the Borrower such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee board of the Board directors of Directors of the Borrower such Loan Party authorizing the execution, delivery and performance of the Loan Documents and to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or the equivalent thereof) of the Borrower such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to sub-clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the Borrowersuch Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to sub-clause (ii) above; and (iv) such other documents as the Banks Lenders or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, Administrative Agent may reasonably request.
(d) The Administrative Agent and the Lenders shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Borrower, confirming compliance with the conditions precedent set forth in paragraphs clauses (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks Administrative Agent and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agent Lenders shall have received all Fees (including the Upfront Fees) and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(f) The Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Administrative Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Security Document.
(g) The Administrative Agent and the Lenders shall have received a Perfection Certificate with respect to the Loan Parties dated the Closing Date and duly executed by a Responsible Officer of the Borrower, and shall have received 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, 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 Required Lenders that the Liens indicated in any such financing statement (or similar document) would be expressly permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(h) The Administrative Agent and the Lenders shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which (i) shall be reasonably acceptable to the Required Lenders and (ii) except as otherwise agreed by the Required Lenders in their sole discretion, 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 Required Lenders.
(i) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Facility shall have been paid (or shall be paid on the Closing Date from the proceeds of the Term Loans) in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, and the Administrative Agent and the Lenders shall have received evidence thereof pursuant to a payoff letter or similar undertaking by the holder of the Existing Credit Facility, in each case, reasonably satisfactory to the Required Lenders. Immediately after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower and the Subsidiaries shall have outstanding no Indebtedness (other than Permitted Indebtedness) or preferred stock (other than preferred stock that is Qualified Capital Stock).
(j) The Lenders shall have received the financial statements and opinion referred to in Section 3.05, none of which shall demonstrate a material adverse change in the financial condition of the Borrower from (and shall not otherwise be materially inconsistent with) the financial statements or forecasts previously provided to the Lenders.
(k) The Administrative Agent and the Lenders shall have received a certificate from the chief financial officer of the Borrower certifying that each of the Loan Parties after giving effect to the Transactions to occur on the Closing Date, is solvent.
(l) The Administrative Agent and the Lenders shall have received evidence (reasonably acceptable to the Required Lenders) that, as of the Closing Date and immediately after giving pro forma effect to the Transactions, the Qualified Cash shall be equal to at least $7,500,000.
(m) The Borrower shall have delivered to the Administrative Agent a VCOC Information Letter.
(n) All requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby to the extent required, all applicable appeal periods shall have expired and there shall not be any pending or threatened litigation, governmental, administrative or judicial action that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions or the other transactions contemplated hereby.
(o) The Administrative Agent and the Lenders shall have received, to the extent requested, at least five Business Days prior to the Closing Date, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from the Borrower and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(p) The Note Subordination Agreement shall have been duly executed by the Note Holders and the other parties thereto and shall be in full force and effect on the Closing Date.
(q) The Administrative Agent and the Lenders shall have received copies of the Note Purchase Agreement, the Notes and the other Note Documents, certified by a Responsible Officer as being complete and correct.
Appears in 1 contract
First Borrowing. On The obligations of the Lenders to make Loans --------------- hereunder, and the obligation of the Issuing Bank to issue Letters of Credit hereunder, are subject to the satisfaction of the conditions that on the date of the first Borrowing hereunder (such date being referred to herein as the "Closing Date:"): -------------
(a) The Agent shall have received a favorable counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telegraphic, telex, telecopy or other written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the Borrower, dated the Closing Date and addressed confirmation from such party in form satisfactory to the Banks, to Agent of the effect set forth in Exhibit D hereto, and the Borrower hereby instructs execution of a counterpart hereof by such counsel to deliver such opinion to the AgentLender).
(b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the Agent.
(c) The Agent shall have received (i) for the account of each Lender, a duly executed Note or Notes, dated the Closing Date, complying with the provisions of Section 2.04 and (ii) for the account of the Swingline Lender, a duly executed Swingline Note, dated the Closing Date, complying with the provisions of Section 2.04.
(c) The Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each Collateral Document, perfected to the extent contemplated by Section 3.18 and the Agent shall have received:
(i) counterparts of the Security Agreement, duly executed by the Borrower, and a duly completed and executed Perfection Certificate from the Borrower;
(ii) certificates representing 65% of all outstanding Capital Stock of each Foreign Subsidiary (other than uncertificated Capital Stock of Firearms Training Systems Netherlands B.V.), accompanied by stock powers endorsed in blank, and the Intercompany Notes, duly executed by each Foreign Subsidiary, accompanied by assignments executed in blank;
(iii) an acknowledgement copy, or other evidence satisfactory to the Agent, of the proper filing, registration or recordation of each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Agent to be filed, registered or recorded in each jurisdiction and to each Governmental Authority in which or to which the filing, registration or recordation is so required or requested in order to create in favor of the Agent for the benefit of the Secured Parties a valid, legal and perfected security interest in or lien on the Collateral that is the subject of the Security Agreement or any Pledge Agreement;
(iv) certified copies of Requests for Information or Copies (form UCC-11), or equivalent reports from ▇▇▇▇▇▇▇▇-▇▇▇▇ Financial Services or other independent search service satisfactory to the Agent, listing
(A) any judgment naming the Borrower or any other Loan Party, as judgment debtor, (B) any tax lien that names the Borrower or any other Loan Party as a delinquent taxpayer in any of the jurisdictions referred to in clause (iii) above and (C) any Uniform Commercial Code financing statement that names the Borrower or any other Loan Party as debtor filed in any of the jurisdictions referred to in clause (iii) above;
(v) appropriate duly executed termination statements (Form UCC-3) signed by all persons disclosed as secured parties in the jurisdictions referred to in clause (iii) above (other than holders of Liens permitted under Section 6.02) in form for filing under the Uniform Commercial Code of such jurisdictions;
(vi) an escrow agreement or payoff letter in form and substance satisfactory to the Agent executed by the existing lenders and holders of Liens (other than Liens permitted under Section 6.02) in respect of the Borrower and the Subsidiaries pursuant to which such lenders and Lien holders will, among other things, deliver the termination statements referred to in clause (v) above into escrow pending the Closing;
(vii) counterparts of the Buyer Pledge Agreement, duly executed by the Buyers;
(viii) counterparts of the Seller Pledge Agreement, duly executed by the Seller;
(ix) counterparts of (A) a valid and binding pledge agreement effective under the laws of the Netherlands Antilles to create the equivalent of a perfected security interest for the benefit of the Agent and the Secured Parties in the Capital Stock of Firearms Training Systems Netherlands B.V. and (B) a valid and binding pledge agreement effective under the laws of Singapore to create the equivalent of a perfected security interest for the benefit of the Agent and the Secured Parties in the Capital Stock of F.A.T.S. Singapore PTE LTD.;
(x) certificates representing all the Common Stock outstanding after giving effect to the Recapitalization, accompanied by stock powers endorsed in blank;
(xi) counterparts of each Agency Account Agreement or other Collateral Document requested by the Agent, duly executed by the parties thereto; and
(xii) counterparts of an Acknowledgement of Subordination, substantially in the form of Exhibit R, duly executed by each of the Subsidiaries.
(d) The Agent shall have received an opinion of each of (i) the appropriate counsel to the Loan Parties necessary to give those opinions set forth in Exhibit L-1 hereto, Georgia counsel to the Borrower in the form of Exhibit L-2 hereto and Singapore and Netherlands counsel to the Borrower in form and substance satisfactory to the Lenders and (ii) copies of each opinion required to be delivered by counsel to the Borrower, the Buyer and the Seller pursuant to the Recapitalization Agreement, accompanied in each case by a letter, unless such opinion is addressed to the Agent and the Lenders or expressly includes a reliance provision, from the counsel rendering such opinion, stating that the Agent and the Lenders are entitled to rely on such opinion as if it were addressed to the Agent and the Lenders; each such opinion or reliance letter, as the case may be, referred to in clauses (i) and (ii) shall be dated the Closing Date and addressed to the Agent and the Lenders.
(e) The Agent shall have received counterparts of the Junior Subordination Agreement duly executed by the Sponsor, the Buyers and the Borrower as of the Closing Date.
(f) The Agent shall have received:
(i) a certificate, dated the Closing Date and signed by a Financial Officer of each of the Borrower and the Subsidiaries confirming compliance with the conditions precedent set forth in paragraphs (h), (i), (j), (l), (o), (p), (q) and (s) of this Section 4.01 and in paragraphs (b), (c) and (d) of Section 4.02;
(ii) a copy of the articles long form certificate of incorporationincorporation or other constitutive documents, including all amendments thereto, of each of the BorrowerLoan Parties, certified as of a recent date by the Secretary of State (or comparable authority) of the state jurisdiction of its organization, and a certificate as to the good standing of the Borrower each such party as of a recent date, from such Secretary of State; State (iior other authority);
(iii) a certificate of the Secretary or Assistant Secretary of each of the Borrower Loan Parties dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws or comparable governing instruments of regulations of the Borrower such party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors or comparable governing body of such party (or, in the case of any partnership, of the Borrower general partner of such party) authorizing the execution, delivery and performance of the Loan Documents to which such party is or will be a party, and, in the case of the Borrower, the consummation of the Recapitalization and the borrowings extensions of credit hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles certificate of incorporation or other constitutive documents of the Borrower such party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iii) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of such party and (E) with respect to the Borrower; (iii) , that attached thereto is a certificate of another officer as to the incumbency true and specimen signature complete executed copy of the Secretary or Assistant Secretary executing Recapitalization Agreement, the certificate pursuant to (ii) aboveNote Documents and all other documents and instruments executed and delivered therewith; and and
(iv) such other documents as documents, opinions, certificates and agreements in connection with the Banks or their counsel or CravathFacilities, Swaine & Moor▇, ▇▇unsel for in form and substance satisfactory to the Agent, may as it shall reasonably request.
(d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agent Borrower shall have received paid all Fees and other amounts due and payable to the Agent or any Lender on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Fee Letter or any Loan Document (to the extent invoices or statements therefor have been received).
(h) All conditions set forth in the Recapitalization Agreement to the obligations of the Buyers shall have been satisfied; the Recapitalization Agreement shall not have been altered, amended or otherwise changed or supplemented or any condition therein waived, without the prior written consent of the Agent.
(i) All components of the Recapitalization shall have been consummated in accordance with the terms of the Recapitalization Agreement and in compliance with applicable law and regulatory approvals simultaneously with the first Borrowing hereunder, including the receipt of 95 $36,000,000 of gross proceeds from the Equity Purchase and $40,000,000 of gross proceeds from the Permitted Senior Subordinated Notes.
(i) The terms and conditions applicable to the Permitted Junior Preferred Stock shall comply with Section 6.01(f) and shall otherwise be reasonably satisfactory to the Agent and the Lenders and (ii) the terms and conditions applicable to the Permitted Senior Subordinated Notes, the Permitted Senior Preferred Stock and the Warrants shall not have been changed in any material respect from those set forth in the letter agreement and summary of principal terms and conditions from NationsBridge, L.L.C. dated June 5, 1996.
(k) The Agent shall have received and approved the monthly working capital detail of the Borrower for the first projected fiscal year after Closing and pro forma financial statements of the Borrower and the Subsidiaries as of, and for the 12 months ended on, March 31, 1996, giving effect to the Recapitalization and the transactions contemplated hereby, prepared by the Borrower.
(l) No Material Adverse Change shall have occurred since March 31, 1996.
(m) The Agent shall have received certification in form and substance satisfactory to the Agent as to the financial condition, available surplus and solvency of the Borrower and the Subsidiaries (after giving effect to the Recapitalization) from an independent firm acceptable to the Agent; provided -------- that the firm of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ shall be acceptable to the Agent.
(n) The Agent shall have received (i) satisfactory opinions of counsel to the Loan Parties (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of the documents for the Facilities) and such corporate resolutions, certificates and other documents as the Agent shall reasonably require and (ii) satisfactory evidence that the Agent (on behalf of the Lenders) holds a perfected, first priority Lien in all Collateral for the Facilities, subject to no other Liens, except for Liens permitted under Section 6.02.
(o) The Agent shall have received satisfactory evidence that the Borrower has obtained all governmental, shareholder and third party consents and approvals and expiration of all applicable waiting or appeal periods necessary or, in the opinion of the Agent, appropriate in connection with the Facilities and the pledge of the Collateral for the Facilities without any action being taken that could restrain, prevent or impose any material adverse condition on the Borrower and the Subsidiaries or the Recapitalization or that could seek or threaten any of the foregoing, and no law or regulation or condition shall be applicable which in the judgment of the Agent could have such effect; provided -------- that no failure of the foregoing condition shall be deemed to have occurred as a result of a failure to obtain a novation with the Seller of the Borrower's contracts with departments or agencies of the United States Government to supply the United States Government with simulators which is required because of the Equity Purchase and the Redemption.
(p) There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or other Governmental Authority that purports to adversely affect the Facilities or that could have a material adverse effect on the ability of the Borrower and the Subsidiaries to perform their obligations under the documents to be executed in connection with the Facilities, except as disclosed to and approved by the Agent prior to the date hereof.
(q) There shall be no less than $5,000,000 of Unused Revolving Credit Commitments and cash of the Borrower and the Subsidiaries on hand at Closing after giving effect to the Recapitalization.
(r) There shall not have occurred and be continuing (i) a material adverse change in the market for syndicated bank credit facilities or (ii) a material disruption of, or a material adverse change in, financial, banking or capital market conditions.
(s) Each Notice of Assignment required under the Assignment of Claims Act of 1940, as amended, with respect to all U.S. Federal Government Contracts shall have been filed with the applicable Governmental Authority in order to assign to the Agent all moneys due or to become due under each such Government Contract (other than (i) those Government Contracts identified as completed on Schedule 13 to the Security Agreement and (ii) Government Contract GS-02F-0414D with the General Services Administration) with a total current or potential value exceeding $500,000.
Appears in 1 contract
First Borrowing. On The obligations of the Lenders to make Loans hereunder, and the obligation of the Issuing Bank to issue Letters of Credit hereunder, are subject to the satisfaction of the conditions that on the Closing Date:
(a) The Agents shall have received counterparts hereof signed by each of the parties (or, in the case of any Lender as to which an executed counterpart shall not have been received, telecopy or other written confirmation from such party in form satisfactory to the Agents of the execution of a counterpart hereof by such Lender).
(b) The Administrative Agent shall have received for the account of each Lender a favorable written opinion duly executed Note or Notes, dated the Closing Date, complying with the provisions of Bake▇ & ▇ostSection 2.04.
(c) The Administrative Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in the Collateral Documents, perfected to the extent contemplated by Section 3.18 and the Administrative Agent shall have received:
(i) counterparts of the Pledge Agreement, duly executed by the Borrower and all Domestic Subsidiaries of the Borrower, and a duly completed and executed Perfection Certificate from the Borrower and all Domestic Subsidiaries of the Borrower;
(ii) certificates representing 100% of all outstanding Capital Stock of each Domestic Subsidiary (or such other percentage as is owned by the Borrower or applicable Domestic Subsidiary as noted on Schedule 3.08), accompanied by stock powers endorsed in blank and Intercompany Notes, duly executed by each Domestic Subsidiary, accompanied by assignments executed in blank;
(iii) except for those Foreign Subsidiaries listed on Schedule 5.14(c), certificates representing 65% of all outstanding Capital Stock of each Foreign Subsidiary that is a Restricted Subsidiary, accompanied by stock powers endorsed in blank, and, except for those Foreign Subsidiaries listed on Schedule 5.14(b), Intercompany Notes, duly executed by each and every Wholly Owned Subsidiary that is a Foreign Subsidiary (whether owned directly or indirectly), and each and every non-Wholly Owned Subsidiary that is a Foreign Subsidiary that is borrowing from a Domestic Subsidiary or the Borrower as of the Closing Date, accompanied by assignments executed in blank;
(iv) an acknowledgement copy, or other evidence satisfactory to the Agents, of the proper filing, registration or recordation of each document (including each Uniform Commercial Code financing statement) required by law or reasonably requested by the Agents to be filed, registered or recorded in each jurisdiction and to each Governmental Authority in which or to which the filing, registration or recordation is so required or requested in order to create in favor of the Administrative Agent for the benefit of the Secured Parties a valid, legal and perfected security interest in or Lien on the Collateral that is the subject of the Pledge Agreement;
(v) certified copies of Requests for Information or Copies (form UCC-11), or equivalent reports from Pren▇▇▇▇-▇▇▇▇ Financial Services or other independent search service satisfactory to the Agents, listing (A) any judgment naming the Borrower or any Subsidiary, as judgment debtor, (B) any tax lien that names the Borrower or any Subsidiary as a delinquent taxpayer in any of the jurisdictions referred to in clause (iv) above and (C) any Uniform Commercial Code financing statement that names the Borrower or any Subsidiary as debtor filed in any jurisdiction in which a Lien could be perfected against assets of the Borrower or any Subsidiary;
(vi) appropriate duly executed termination statements (Form UCC-3) signed by all persons disclosed as secured parties in the jurisdictions referred to in clauses (iv) and (v)(C) above (other than holders of Liens permitted under Section 6.02) in form for filing under the Uniform Commercial Code in the applicable jurisdictions; and
(vii) any other evidence reasonably required by the Agents to evidence that the Administrative Agent (on behalf of the Lenders) holds a perfected, first priority Lien in all Collateral for the Facilities, subject to no other Liens, except for Liens permitted under Section 6.02. Such evidence shall include, but is not limited to, evidence of registration of the Lenders' security interest on the register or books of certain Foreign Subsidiaries and any other action as may be required under applicable local law to perfect the Lenders' security interest in the Capital Stock of the Foreign Subsidiaries (other than with respect to those Foreign Subsidiaries listed on Schedule 5.14(c).
(d) The Agents shall have received (i) an opinion of Thom▇▇▇▇ Hine & ▇lor▇ ▇▇▇, counsel for to the BorrowerBorrower and the Subsidiaries, substantially in the form of Exhibit F hereto dated the Closing Date and addressed to the Agents and the Lenders, and (ii) opinions of Doser Amereller Noac▇, ▇▇rman counsel to the Borrower and the German Subsidiary, and Simm▇▇▇ & ▇imm▇▇▇, ▇▇glish counsel to the Borrower and the UK Subsidiary, each in form and substance acceptable to the Agents, dated the Closing Date and addressed to the BanksAgents and the Lenders.
(e) The Agents shall have received counterparts of the Guarantee Agreement duly executed by the Guarantors and the Administrative Agent dated as of the Closing Date and the Indemnity, to Subrogation and Contribution Agreement duly executed by the effect Borrower, the Guarantors and the Administrative Agent dated as of the Closing Date.
(f) The Agents shall have received:
(i) an Officer's Certificate, dated the Closing Date and signed by a Responsible Officer of each of the Borrower and the Subsidiaries confirming compliance with the conditions precedent set forth in Exhibit D heretosubparagraphs (h), (i), (j), (k) and the Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(l) of this Section 4.01 and in subparagraphs (b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath), Swaine & Moor▇, ▇▇unsel for the Agent.
(c) The Agent shall have received and (id) of Section 4.02;
(ii) a copy of the articles long form certificate of incorporationincorporation or other constitutive documents, including all amendments thereto, of each of the Borrower, the Domestic Subsidiaries and all Foreign Subsidiaries not listed on Schedule 5.14(a), certified as of a recent date by the Secretary of State (or comparable authority whether domestic or foreign (where available)) of the state jurisdiction of its organization, and a certificate as to the good standing of the Borrower each such party as of a recent date, from such Secretary of State; State (iior other domestic or foreign authority (where available));
(iii) a certificate of the Secretary or Assistant Secretary of each of the Borrower Borrower, the Domestic Subsidiaries and all Foreign Subsidiaries not listed on Schedule 5.14(b), dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws or comparable governing instruments of regulations of the Borrower such party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors or comparable governing body of such party (or, in the case of any partnership, of the Borrower general partner of such party) authorizing the execution, delivery and performance of the Loan Documents and to which such party is or will be a party, and, in the borrowings case of the Borrower, the extensions of credit hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles certificate of incorporation or other constitutive documents of the Borrower such party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iii) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document Document or any other document delivered in connection herewith on behalf of the Borrowersuch party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and and
(iv) such other documents documents, opinions, certificates and agreements in connection with the Facilities, in form and substance satisfactory to the Agents, as the Banks or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, may it shall reasonably request.
(d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agent Borrower shall have received paid all Fees and other amounts due and payable to the Agents or any Lender on or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Fee Letter or any Loan Document.
(h) The Agents shall have received evidence that the Existing Debt has been repaid in full and all credit facilities, security interests and other agreements related thereto have been terminated and discharged in a manner satisfactory to the Agents, NCMI and the Lenders, and that the Borrower and the Subsidiaries shall have no Indebtedness or other liabilities other than Permitted Indebtedness and liabilities disclosed on Schedule 3.05(b).
(i) No Material Adverse Change shall have occurred since August 31, 1996.
(j) The Lenders shall have received evidence satisfactory to each of them that the Borrower and the Subsidiaries have obtained all governmental (whether domestic or foreign), shareholder and third party consents and approvals and expiration of all applicable waiting or appeal periods necessary or, in the opinion of the Lenders, appropriate in connection with the Facilities and the pledge of the Collateral for the Facilities without any action being taken that could restrain, prevent or impose any material adverse condition on the Borrower, the Subsidiaries (or any of them) or the transactions contemplated hereby or that could seek or threaten any of the foregoing, and no law or regulation or condition shall be applicable which in the judgment of the Lenders could have such effect.
(k) There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or Governmental Authority that purports to adversely affect the Facilities or that could have a Material Adverse Effect.
(l) None of the Borrower and the Subsidiaries shall be in violation of any law, rule or regulation, or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default could reasonably be expected to result in a Material Adverse Effect.
(m) The Agents and the Lenders shall have received information satisfactory to them regarding litigation, tax, tax sharing arrangements, management arrangements, accounting, labor, insurance, pension liabilities (actual or contingent), employee benefits (including post-retirement benefits), real estate leases, Material Contracts, debt agreements, intercompany agreements, property ownership, transaction with affiliates and contingent liabilities of the Borrower and the Subsidiaries.
(n) The Agents and the Lenders shall have received, and in each case approved the consolidated financial statements of the Borrower for the most recent three Fiscal Years, including balance sheets and statements of operation and cash flows, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.
(o) The Agents and the Lenders shall have completed, and shall be satisfied with the results of, their respective due diligence investigations of the business, assets, operations, properties, condition (financial and otherwise), liabilities (actual and contingent) and prospects of the Borrower and the Subsidiaries.
(p) The Agents and the Lenders shall be satisfied in all respects with all agreements and transactions between any of the Borrower and the Subsidiaries, on the one hand, and any of their Affiliates and Shareholders, on the other hand, and with all other material agreements of any of the Borrower and the Subsidiaries.
(q) The Agents and the Lenders shall be satisfied with the corporate and legal structure and capitalization of the Borrower and the Subsidiaries.
Appears in 1 contract
First Borrowing. On the Closing Date:
(a) The Agent shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agent.
(b) All legal matters incident to this Agreement and the borrowings hereunder shall be satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent.
(c) The Agent shall have received (i) a copy of the articles of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors of the Borrower authorizing the execution, delivery and performance of the Loan Documents and the borrowings hereunder, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles of incorporation of the Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Agent, may reasonably request.
(d) The Agent shall have received a certificate from the Borrower, dated the Closing Date and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (Scripps E W Co /De)
First Borrowing. On the Closing Date:
(a) Each Lender shall have received a duly executed Note complying with the provisions of Section 2.04.
(b) The Agent shall have received a favorable written opinion of Bake▇ & Friday, ▇ost▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the BorrowerBorrowers, dated the Closing Date and addressed to the BanksLenders, to the effect set forth in Exhibit D hereto, and satisfactory to Cravath, Swaine & ▇▇▇▇▇, counsel for the Borrower Agent; the Borrowers hereby instructs instruct such counsel to deliver such opinion to the Agent.
(bc) All legal matters incident to this Agreement all of the Loan Documents and the borrowings Transactions hereunder shall be satisfactory to the Banks Lenders and their counsel and to Cravath, Swaine & Moor▇▇▇▇▇, ▇▇unsel counsel for the Agent.
(cd) The Agent shall have received (i) a copy of the articles certificate of incorporation, as amended, including all amendments thereto, of the each Borrower, certified as of a recent date by the Secretary of State of the state of its organizationDelaware, and a certificate as to the good standing of the and charter documents filed by each Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of the each Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code by-laws of regulations of the such Borrower as in effect on the Closing Date date of such certificate and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Executive Committee of the Board of Directors of the Borrower such Borrower, or appropriate committee thereof, authorizing the execution, delivery and performance Transactions on behalf of the Loan Documents and the borrowings hereundersuch Borrower, and that such 47 43 resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles certificate of incorporation of the such Borrower have has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer of such Borrower executing any Loan document Document or any other document delivered in connection herewith on behalf of the such Borrower; (iii) a certificate of another officer of each Borrower as to the incumbency and specimen signature of the Secretary or such Assistant Secretary of such Borrower executing the certificate pursuant to (ii) above; and (iv) such other documents as the Banks or their counsel Lenders or Cravath, Swaine & Moor▇▇▇▇▇, ▇▇unsel counsel for the Agent, may reasonably request.
(de) The Agent shall have received a certificate from the Borrowercertificate, dated the Closing Date and signed by a Financial Officer thereofof the Parent, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunder.
(g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
(g) All amounts payable pursuant to the Revolving Credit Agreements dated as of July 14, 1992, among the Parent, DIC, the Agent, and the lenders named therein shall have been paid and the commitments of the lenders thereunder shall have been terminated.
Appears in 1 contract
Sources: Credit Agreement (Dillards Inc)
First Borrowing. On The obligations of the Closing DateLenders to make the initial Loans hereunder on the occasion of the first Borrowing are subject to the satisfaction of the following conditions, in addition to those set forth in Section 4.03:
(a) The Agent Effective Date shall have received a favorable written opinion of Bake▇ & ▇ost▇▇▇▇▇ ▇▇▇, counsel for the Borrower, dated the Closing Date and addressed to the Banks, to the effect set forth in Exhibit D hereto, and the Borrower hereby instructs such counsel to deliver such opinion to the Agentoccurred.
(b) All legal matters incident to this Agreement Lucent shall have received counterparts of the Conversion Indenture and the borrowings hereunder Conversion Agreement, signed on behalf of each party thereto. All arrangements for the issuance of Conversion Notes (including delivery to the Conversion Trustee of the Securities Authentication Order (as defined in the Conversion Indenture) and Conversion Notes duly executed on behalf of the Parent in an aggregate principal amount of $2,000,000,000) shall be have been completed in a manner reasonably satisfactory to the Banks and their counsel and to Cravath, Swaine & Moor▇, ▇▇unsel for the AgentLucent.
(c) The Administrative Agent shall have received (i) a copy certificate, dated the date of the articles first Borrowing and signed by the President, a Vice President or a Financial Officer of incorporation, including all amendments thereto, each of the Parent and the Initial Borrower, certified as of a recent date by confirming compliance with the Secretary of State of the state of its organization, conditions set forth in Section 4.03.
(d) The Agents and a certificate as Lucent shall be satisfied that all fees and other amounts due and payable to the good standing of the Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary them hereunder on or Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the code of regulations of the Borrower as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) belowfirst Borrowing, (B) that attached thereto is a true and complete copy including, to the extent invoiced, reimbursement or payment of resolutions duly adopted all expenses required to be reimbursed or paid by the Executive Committee Initial Borrower hereunder or under any other Loan Document, have been paid.
(e) The Collateral Agent shall have received counterparts of an Equipment User Agreement or other document contemplated by Section 6.13, in either case signed on behalf of the Board of Directors of initial Equipment User or Users.
(f) The Agents shall have received evidence reasonably satisfactory to them that all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by either Agent to be filed, registered or recorded to create or perfect the Borrower authorizing Liens intended to be created under the executionU.S. Security Agreement entered into by the Initial Borrower, delivery and performance of to protect the Loan Documents Initial Borrower's ownership interest in (and the borrowings hereunderLien of such U.S. Security Agreement on) all Collateral that will be leased to or otherwise possessed by any initial Affiliated Equipment User, and that such 47 43 resolutions have not been modifiedso filed, rescinded registered or amended and are in full force and effect, recorded.
(Cg) that the articles of incorporation of the Borrower The Agents shall have not been amended since received a completed Perfection Certificate dated the date of the last amendment thereto shown on first Borrowing and signed by a Financial Officer of the certificate of good standing furnished pursuant to clause Initial Borrower, together with all attachments contemplated thereby, including (i) above, and the results of a search of the Uniform Commercial Code (Dor equivalent) as filings made with respect to the incumbency Initial Borrower in the jurisdictions contemplated by the Perfection Certificate and specimen signature of each officer executing any Loan document or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agents that the Liens indicated by such financing statements (ivor similar documents) such other documents as the Banks are permitted by Section 6.03 or their counsel or Cravath, Swaine & Moor▇, ▇▇unsel for the Agent, may reasonably requesthave been released.
(dh) The Administrative Agent shall have received evidence reasonably satisfactory to it that the insurance required by Section 5.05 and the U.S. Security Agreement is in effect and that the Collateral Agent has been named as an additional insured and loss payee under all insurance policies to be maintained with respect to the properties of any Borrower or any Foreign Subsidiary Equipment Owner constituting Collateral.
(i) As of the date of the first Borrowing, all funding commitments in respect of all other credit facilities of the Parent and its Subsidiaries, including all commitments under the Bank Credit Agreement, shall be fully drawn, and the Administrative Agent shall have received a certificate from the Borrower, to such effect dated the Closing Date date of such Borrowing and signed by a Financial Officer thereof, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01.
(e) The representations and warranties set forth in Section 3.06 shall be true and correct in all material respects.
(f) Concurrently with the transactions contemplated hereby on the Closing Date, the Borrower, the applicable Banks and the Agent shall have executed a side letter whereby all competitive loans under the Existing Credit Agreement shall be deemed to be Competitive Loans hereunder. The Borrower shall have repaid in full all other amounts due under the Existing Credit Agreement and under each other agreement related thereto, and the Agent shall have received duly executed documentation either evidencing or necessary for (i) the termination of the Existing Credit Agreement and each other agreement related thereto and (ii) the cancelation of all commitments thereunderParent.
(g) The Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date.
Appears in 1 contract