Initial Credit Extension. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (a) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (b) a Note duly executed by the Borrower in favor of each Lender requesting a Note; (c) the Guaranty duly executed by each Guarantor; (d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary; (e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary; (f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization; (g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (h) a list of the Authorized Representatives; (i) the initial fees called for by Section 2.12 hereof; (j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower; (k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens; (l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent; (m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and (n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Cleveland Cliffs Inc)
Initial Credit Extension. The Administrative Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent’s receipt :
(i) Copies of the following, each articles or certificate of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer incorporation of the Borrower or and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and each Guarantor authorized to sign the Loan Documents to which it is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or such Guarantor.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's and each Guarantor's counsel, addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the case Agent may behave reasonably requested and the payment of all fees required in connection herewith.
(viii) All Guaranties signed by the Guarantors.
(ix) Copies of such financial statements of the Borrower and its Subsidiaries required by the Agent, each dated together with prospective financial information for the Closing Date (orBorrower and its Subsidiaries, in the each case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Agent.
(x) The Borrower and its Subsidiaries shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary in connection with the FASCO Acquisition and the other transactions contemplated by the Loan Documents and the FASCO Acquisition Documents, and each of the Lenders:foregoing shall be in full force and effect. All applicable waiting periods shall have expired without any action being taken by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the completion of the FASCO Acquisition or the financing thereof. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.
(a) executed counterparts of this Agreement, sufficient in number for distribution All conditions precedent to the Administrative Agent, each Lender and FASCO Acquisition shall have been satisfied pursuant to the Borrower;
(b) a Note duly executed FASCO Acquisition Documents or waived by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents party entitled to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior do so to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for extent permitted by Section 2.12 6.2 hereof;
; (j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of the following, each of which Aggregate Commitment shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of not ------------------------ become effective until the Borrower satisfies the conditions precedent contained in this Section 4.1 (provided the Borrower satisfies such ----------- conditions on or Guarantorbefore September 17, 2001) and, if later, the date specified in the Borrowing Notice required pursuant to Section 4.1(m) as the case may bedate for -------------- the initial (and only) Advance to be made. The Lenders shall not be required to make the initial (and only) Advance hereunder, each dated unless the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory Borrower has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(a) executed counterparts Copies of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and articles of incorporation of the Borrower;, together with all amendments, and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation.
(b) a Note duly executed Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the execution of the Borrower in favor of each Lender requesting a Note;Credit Documents and Subsidiary Guaranties, as applicable.
(c) the Guaranty duly An incumbency certificate, executed by each Guarantor;the Secretary or Assistant Secretary of the Borrower and its Subsidiaries, which shall identify by name and title and bear the signature (or facsimiles thereof) of the officers of the Borrower authorized to sign the Borrower Credit Documents and Subsidiary Guaranties, as applicable and, in the case of the Borrower, to make Credit Extensions hereunder, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(d) copies A certificate, signed by the chief financial officer of the Borrower’s , stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;is continuing.
(e) copies A written opinion of resolutions ▇▇▇▇▇ ▇▇▇▇ LLP, legal counsel to the Borrower, addressed to the Lenders in substantially the form of Exhibit "C" hereto.
(f) Note payable to the order of the Agent.
(g) A compliance certificate in substantially the form of Exhibit "D" hereto signed by the Borrower’s 's chief financial officer showing the calculations necessary to determine compliance with Sections 6.20, 6.21 and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance 6.22 of this Agreement ------------- ---- ---- Agreement.
(h) Written money transfer instructions, in substantially the form of Exhibit "E" hereto, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(i) An amendment to the Note Purchase Agreement, on terms and conditions reasonably acceptable to the Agent and the other Loan Documents Lenders, which amendment shall permit (i) the issuance of the Subsidiary Guaranties required by this Agreement, conditioned only upon receipt by the Senior Noteholders of guaranties from such Subsidiaries on terms no less favorable to the Senior Noteholders than those contained in the Subsidiary Guaranties, which it is a party guaranties shall be required only for so long as the Subsidiary Guaranties have not been released and (ii) the execution of the Pledge Agreements required by this Agreement, conditioned only upon the requirement that the Lien of the Pledge Agreement be extended equally and ratably to the Senior Noteholders, which Lien in favor of the Senior Noteholders shall be required only for so long as the collateral under the applicable Pledge Agreement(s) hereunder has not been released.
(j) Evidence satisfactory to the Agent that (i) all material conditions precedent to the consummation of the transactions contemplated hereby and thereby, together Whirlwind Acquisition have been satisfied or waived with incumbency certificates and specimen signatures the approval of the persons authorized to execute such documents on Agent, (ii) the Borrower’s and each Guarantor’s behalf, Whirlwind Acquisition Agreement has been approved by all certified in each instance by its Secretary or Assistant Secretary;
(f) copies necessary corporate action of the certificates Board of good standing, or the nearest equivalent in the relevant jurisdiction, for Directors and shareholders of the Borrower and each Guarantor (dated no earlier than 45 days prior Whirlwind, and has not been amended, waived or modified in any material respect adverse to the date hereof) from Lenders without the office approval of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) Agent and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(iiii) the Whirlwind Acquisition will close contemporaneously with the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;funding under this Agreement.
(k) financing statement, tax, Evidence reasonably satisfactory to the Agent that all required governmental approvals related to the Whirlwind Acquisition have been obtained and judgment lien search results against the Property of the Borrower all related filings made and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liensany applicable waiting periods shall have expired or been terminated;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance Evidence reasonably satisfactory to the Administrative Agent that there exists no injunction or temporary restraining order which, in the reasonable judgment of the Agent, would prohibit the making of the Loans or the consummation of the Whirlwind Acquisition and the other transactions contemplated by the transaction documents or any litigation seeking such an injunction or restraining order;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative The Agent shall have received notice from a Notice of Borrowing. The Borrowing Notice with respect to such Lender prior to Advance, shall constitute a representation and warranty by the proposed Closing Date specifying its objection thereto.Borrower that the conditions contained in Section 4.1 have been satisfied. -----------
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders and the following, each of which LC Issuers shall not be originals or telecopies (followed promptly by originals) required to make the initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(a) executed counterparts of this Agreement(i) all principal, sufficient in number for distribution to interest and other amounts outstanding under the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Existing Three Year Credit Agreement and the other Loan Documents to which it is a party Existing Parent Three Year Credit Agreement shall be repaid and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified satisfied in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, full and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could all commitments to extend credit thereunder shall be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) terminated; and the Administrative Agent shall have received for itself evidence of the fees otherwise agreed foregoing satisfactory to in writing among them it, including a payoff letter executed by the lenders or the agent under the Existing Three Year Credit Agreement and the Borrower;Existing Parent Three Year Credit Agreement and (b) the Borrower has furnished to the Administrative Agent with sufficient copies for the Lenders:
(ki) financing statementCopies of the articles or certificate of incorporation of the Borrower, taxtogether with all amendments, and judgment lien search results against a certificate of good standing, each certified by the Property appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents, upon which certificate the Administrative Agent and each Guarantor evidencing the absence Lenders shall be entitled to rely until informed of Liens on its Property except for Permitted Liens;any change in writing by the Borrower.
(liv) A certificate, signed by an Authorized Officer, stating that on the favorable initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of counsel to the Borrower and each GuarantorBorrower's counsel, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory addressed to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with LC Issuers as of the Closing Date are being terminated; andand the Lenders in substantially the form of Exhibit A.
(nvi) Any Notes requested by a Lender pursuant to Section 2.12 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(viii) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Idaho Power Co)
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to ------------------------ make the followingTerm Loans or any initial Revolving Credit Advance, each of which the Swing Line Lender shall not be required to make Swing Line Loans and no LC Issuer shall be originals or telecopies (followed promptly by originals) required to issue a Facility LC hereunder, unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantorhas furnished (if applicable) to the Agent, as with sufficient copies for the case may beLenders, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each all in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(a) executed counterparts Copies of this Agreement, sufficient in number for distribution to the Administrative Agent, articles or certificate of incorporation (or other comparable constituent document) of each Lender of the Borrower and the Borrower;initial Obligor Subsidiaries, together, in each case, with all amendments, and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of organization, as well as any other information required by Section 326 of the USA Patriot Act, 31 U.S.C. Section 5318 or otherwise necessary for the Agent or any Lender to verify the identity of the Borrower and the initial Obligor Subsidiaries as required by Section 326 of the USA Patriot Act, 31 U.S.C. Section 5318.
(b) a Note duly executed Copies, certified by the Borrower in favor Secretary or Assistant Secretary of each Lender requesting a Note;of the Borrower and the initial Obligor Subsidiaries, of its by-laws (or other comparable governing document) and of its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the execution of the Borrower Credit Documents and Subsidiary Guaranties, as applicable.
(c) the Guaranty duly An incumbency certificate, executed by the Secretary or Assistant Secretary of each Guarantor;of the Borrower and the initial Obligor Subsidiaries, which shall identify by name and title and bear the signature of the officers of the Borrower and each initial Obligor Subsidiary, as applicable, authorized to sign the Borrower Credit Documents, Subsidiary Guaranties and initial Collateral Documents, as applicable, and, in the case of the Borrower, to make Credit Extensions hereunder, upon which certificate the Agent and, the LC Issuer, the Swing Line Lender and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(d) copies A certificate, signed by the chief financial officer of the Borrower’s , stating that on the initial Credit Extension Date (i) no Default or Unmatured Default has occurred and each Guarantor’s articles is continuing and (ii) no material adverse change in the business, financial condition, operations or prospects of incorporation and bylaws (the Borrower's or comparable organizational documents) and any amendments theretoof the Borrower's Subsidiaries' has occurred since the Borrower's consolidated financial statements as of December 31, certified in each instance by its Secretary or Assistant Secretary;2003.
(e) copies The written opinions of resolutions ▇▇▇▇▇ ▇▇▇▇ LLP, U.S. counsel to the Borrower and the initial Obligor Subsidiaries, and each Material Foreign Subsidiary's foreign counsel (if any), in the forms of the Borrower’s opinions attached hereto as Exhibit E, in --------- each case addressed to the Agent and each Guarantor’s Board of Directors the Lenders, with respect to the (or similar governing bodywithout limitation) authorizing the executiondue authorization, delivery execution and performance enforceability of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyCredit Documents, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;as applicable.
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable A written opinion of foreign counsel with respect to each Pledge Agreement (if any) to be delivered on the Closing Date, addressed to the Borrower Agent and each Guarantorthe Lenders, in form and substance reasonably satisfactory to the Administrative Agent;.
(mg) evidence A compliance certificate in substantially the form of Exhibit F --------- hereto signed by the Borrower's chief financial officer showing the calculations necessary to determine compliance with Sections 6.20, 6.21 and 6.22 of this Agreement. ------------- ---- ----
(h) Written money transfer instructions, in substantially the form of Exhibit G hereto, addressed to the Agent and signed --------- by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(i) Evidence satisfactory to the Agent and its counsel that, concurrently with the Borrower's receipt of the initial Advance hereunder: (1) the entire principal amount (together with accrued interest and premium, if any) of the Existing Indebtedness shall be repaid in full (other than the Existing LCs) or converted into the relevant Loans hereunder and (2) any and all lender commitments under the Existing Credit Agreement shall have been terminated.
(j) Evidence satisfactory to the Agent of the absence of any material adverse change in the primary or secondary loan syndication markets or capital markets generally.
(k) Promissory notes payable to each of the Lenders requesting promissory notes pursuant to Section 2.14(iv) hereof. ----------------
(l) Such other documents as the Agent or any Lender or its counsel may have reasonably requested including, without limitation, payoff letters the Parent Guaranty, the Subsidiary Guaranty, Pledge Agreements, and UCC termination statements)each other document reflected on the List of Closing Documents attached in Exhibit H to this --------- Agreement.
(m) The ▇▇▇▇ ▇▇▇▇ Acquisition shall have been consummated, reasonably substantially concurrently with the making of the initial Loans, in compliance with the following terms and conditions:
(i) The Agent shall have received evidence satisfactory to the Administrative Agent that the Target's directors and shareholders, and the Borrower's directors, shall have approved the ▇▇▇▇ ▇▇▇▇ Acquisition; and all regulatory and legal approvals for the ▇▇▇▇ ▇▇▇▇ Acquisition shall have been obtained and all waiting periods with respect thereto shall have expired.
(ii) There shall be no injunction or temporary restraining order which, in the judgment of the Agent, would prohibit the making of the Loans or the consummation of the ▇▇▇▇ ▇▇▇▇ Acquisition; and there shall be no litigation which would reasonably be expected to result in a material adverse effect on the Borrower and its Subsidiaries, taken as a whole, or on the Target and its subsidiaries, taken as a whole.
(iii) The amounts and forms of the consideration paid in connection with the ▇▇▇▇ ▇▇▇▇ Acquisition shall be acceptable to the Agent and the Lenders.
(iv) The structure of the ▇▇▇▇ ▇▇▇▇ Acquisition and the terms and conditions of the acquisition agreement related thereto shall be acceptable to the Agent (including without limitation the consideration to be paid in the ▇▇▇▇ ▇▇▇▇ Acquisition), the representations and warranties in such acquisition agreement shall be accurate in all material aspects as of the date of the ▇▇▇▇ ▇▇▇▇ Acquisition closing and the conditions therein shall have been satisfied or waived and the Agent must have received copies of opinions of counsel, if any are delivered in connection with the ▇▇▇▇ ▇▇▇▇ Acquisition, satisfactory to it as to the enforceability of such acquisition agreement and its compliance with all applicable law.
(v) The Agent shall have received pro forma opening financial --------- statements ("Pro Forma Opening Statements") giving effect to the ▇▇▇▇ ▇▇▇▇ Acquisition and projections (the "Updated Projections") updating the projections (the "Earlier Projections") previously provided to the Agent on or about June 16, 2004 together with such information as the Agent may reasonably request to confirm the tax, legal, and business assumptions made in such Pro Forma Opening Statements and Updated Projections. The Pro Forma Opening Statements and Updated Projections shall demonstrate (in the reasonable judgment of the Agent) together with all other information then available to the Agent, that the Existing Credit Agreements have been or concurrently ability of the Borrower and its Subsidiaries to repay their debts and satisfy the respective other obligations as and when due and to comply with the Closing Date are being terminated; andfinancial covenants contained in the Loan Documents has not changed in any material respect from the Earlier Projections.
(nvi) such other agreements, instruments, documents, certificates, and opinions as The Agent shall have reviewed a copy of any fairness opinion relating to the Administrative Agent may reasonably request. Without limiting the generality terms of the provisions of the last paragraph of Section 9.3▇▇▇▇ ▇▇▇▇ Acquisition, for purposes of determining compliance if any such opinion is delivered in connection with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Acquisition.
(vii) The Agent shall have received a certificate from the chief financial officer of the Borrower supporting the conclusions that after giving effect to the ▇▇▇▇ ▇▇▇▇ Acquisition, the Borrower is solvent and will be solvent subsequent to incurring the indebtedness in connection with the Acquisition, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small capital with which to engage in its businesses.
(viii) The Agent shall have received evidence satisfactory to it of the prepayment of all obligations under existing loan facilities of the Target and its subsidiaries, other than existing loans currently outstanding in China and Germany in an aggregate principal amount not to exceed $15,000,000.
(ix) No material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of the Target and its subsidiaries, taken as a whole, shall have occurred (i) since December 31, 2003 and (ii) since the delivery of the Updated Projections. The Agent shall notify the Borrower of the date on which the foregoing conditions have been met, and such notice from such Lender shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and the LC Issuer to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 8.3) at or prior to ----------- 5 p.m., Chicago time, on September 1, 2004 (and, in the proposed Closing Date specifying its objection theretoevent such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Initial Credit Extension. The Lenders and the Issuers shall not be required to make the initial Credit Extension hereunder until the Borrower has furnished the Administrative Agent’s receipt Agent with (a) all fees required to be paid to the Lenders on the date hereof, (b) evidence that, prior to or concurrently with the initial Credit Extension hereunder, all obligations under the Existing Credit Facilities have been paid in full and all commitments to lend thereunder have been terminated and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief accounting officer or the chief financial officer of the Lenders:Borrower, stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and is continuing.
(av) executed A written opinion of the Borrower's counsel, addressed to the Administrative Agent and the Lenders in substantially the form of Exhibit A.
(vi) Executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly Agreement executed by the Borrower in favor and each Lender.
(vii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each Lender such requesting a Note;Lender.
(cviii) If the Guaranty duly executed by each Guarantor;initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(dix) copies Evidence of the effectiveness of the Credit Agreement among Great Plains, various financial institutions and JPMorgan, as administrative agent, having terms substantially similar to the terms hereof.
(x) A copy of the SEC Order authorizing the Borrower to incur the Indebtedness contemplated by the Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;.
(exi) copies Written money transfer instructions, in substantially the form of resolutions of Exhibit D, addressed to the Borrower’s Administrative Agent and each Guarantor’s Board of Directors (or similar governing body) authorizing signed by an Authorized Officer who has executed and delivered an incumbency certificate in accordance with the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyterms hereof, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xii) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies initial Credit Extension hereunder unless (followed promptly by originalsa) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as has furnished to the case may be, each dated the Closing Date (or, Agent in the case number of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative copies as Agent and shall have reasonably requested each of the Lenders:
(a) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender following documents and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments theretofollowing events shall have occurred, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;applicable:
(i) Copies of the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property articles or certificate of incorporation of the Borrower and each Guarantor evidencing Material Domestic Subsidiary, together with all amendments, and a certificate of good standing, each certified by the absence appropriate governmental officer in its jurisdiction of Liens on its Property except incorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT or necessary for Permitted Liens;the Agent or any Lender to verify the identity of Borrower as required by Section 326 of the USA PATRIOT Act.
(lii) Copies, certified by the favorable written opinion Secretary or Assistant Secretary of counsel to the Borrower and each GuarantorMaterial Domestic Subsidiary, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower and such Material Domestic Subsidiary is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Material Domestic Subsidiary, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and each Material Domestic Subsidiary authorized to sign the Loan Documents to which the Borrower and such Material Domestic Subsidiary is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the Chief Financial Officer or Treasurer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the Agent and the Lenders in form and substance reasonably satisfactory acceptable to the Administrative Agent;.
(mvi) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory Any Notes requested by a Lender pursuant to Section 2.16 payable to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; andorder of each such requesting Lender.
(nvii) Written money transfer instructions, in substantially the form of EXHIBIT E, addressed to the Agent and signed by an Authorized Officer, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
(viii) This Agreement.
Appears in 1 contract
Initial Credit Extension. (a) The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts of this This Agreement, sufficient in number for distribution executed by an Authorized Representative of each party hereto.
(ii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the Administrative Agent, order of each such requesting Lender and executed by an Authorized Representative of the Borrower;maker thereof.
(biii) a Note The Pledge and Security Agreements, together with UCC financing statements and stock certificates representing all of the issued and outstanding capital stock of each of the Guarantors (with stock powers duly endorsed in blank), in each case, executed by the Borrower in favor an Authorized Representative of each Lender requesting a Note;party thereto.
(civ) The Mortgages with respect to the Guaranty duly real property identified on Schedule 4.1 (iv), in each case executed by an Authorized Representative of each Guarantor;party thereto, together with such surveys and title insurance policies as the Agent may require.
(dv) copies The Guaranty executed by an Authorized Representative of each of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;Guarantors.
(evi) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this The Intercompany Subordination Agreement and the other Loan Documents to which it is a Subordination Agreement, each executed by an Authorized Representative or authorized representative of each party thereto.
(vii) A true and complete copy of the Seller Agreements and the consummation of the transactions contemplated hereby Mega Marts Notes, which Seller Agreements and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could Mega Marts Notes shall be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;Agent and the Required Lenders, together with a certificate executed by an Authorized Person of the Borrower, certifying that the transactions contemplated by the Seller Agreements have been consummated substantially in accordance with their terms.
(mviii) evidence Copies of the articles or certificate of incorporation of the Borrower and each of the Guarantors, together with all amendments, and a certificate of good standing or current status, each certified by the appropriate governmental officer in their respective jurisdiction of incorporation.
(includingix) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each of the Guarantors, of their respective by-laws and of their respective Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower and each of the other Loan Parties is a party.
(x) Incumbency certificates, executed by the Secretary or Assistant Secretary of the Borrower and each of the Guarantors, which shall identify by name and title and bear the signatures of the Authorized Representatives and any other officers of the Borrower and the Guarantors authorized to sign the Loan Documents to which each of the Borrower and the Guarantors is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or a Guarantor.
(xi) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing and that there has been no material adverse change in the business, condition (financial or otherwise), operations, performance, Properties or prospects of the Loan Parties since January 1, 2000.
(xii) A written opinion of the Loan Parties' counsel, addressed to the Lenders in substantially the form of Exhibit 4.1(xii).
(xiii) Written money transfer instructions, in substantially the form of Exhibit 4.1(xiii), addressed to the Agent and signed by an Authorized Representative, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(xiv) Evidence that there is no suit, action, injunction or restraining order which, in the reasonable judgment of the Agent: (a) seeks to prohibit the making of the Loans, and (b) that if adversely determined against any Loan Party, would have a Material Adverse Effect.
(xv) Information satisfactory to the Agent and the Required Lenders regarding the Agent's due diligence investigation of the Loan Parties, including without limitation, payoff letters information pertaining to the Loan Parties' Contingent Obligations, contractual obligations, compliance with Environmental Laws (including compliance with the terms set forth in the Agent's Environmental Policy) and UCC termination statements)other legal (including all applicable requirements of Regulations U, T and X of the Board of Governors of the Federal Reserve System) and regulatory matters, joint venture liability, products liability exposure, and intellectual property and license agreements.
(xvi) Audited financial statements for the 1997 and 1998 fiscal year ends of each of Mega Marts, Inc. and Ultra Mart, Inc., and unaudited financial statements for the 1999 fiscal year end of Ultra Mart, Inc.
(xvii) Pro forma opening financial statements and updated projections giving effect to the Borrower's acquisitions of Mega Marts, Inc. and Ultra Mart, Inc., together with such other information as the Agent may reasonably request to confirm the tax, legal and business assumptions made in such pro forma opening financial statements and updated projections (a) which must not be materially less favorable, in the Agent's reasonable judgment, than the projections previously delivered by the Borrower to the Agent and (b) which must demonstrate, in the Agent's reasonable judgment, that the Borrower can repay its Obligations as and when due and can comply with the financial covenants set forth in Section 6.2.14 of this Agreement.
(xviii) Evidence satisfactory to the Administrative Agent, Agent that all of the Existing Credit Agreements Loan Parties' obligations under all existing bank credit facilities and all senior note agreements have been indefeasibly paid in full and that all committed and uncommitted credit facilities have been terminated.
(xix) If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(xx) Evidence of the insurance coverage described in Section 6.1.3.
(xxi) The General Intangibles Mortgage executed by an Authorized Representative of the Borrower.
(xxii) Such other documents as any Lender or concurrently with its counsel may have reasonably requested.
(b) In addition to the deliveries required under Section 4.1(a), the Lenders shall not be required to make the initial Credit Extension hereunder unless:
(i) the Borrower has delivered or caused to be delivered executed lessor's agreements in form and substance satisfactory to the Agent for each of the locations identified on Schedule 4.1(b)(i) hereto (Warehouses), and (ii) the Borrower demonstrates to the Agent's reasonable satisfaction that it has used reasonable commercial efforts to obtain executed lessor's agreements in form and substance satisfactory to the Agent for each of the locations identified on Schedule 4.1(b)(ii) hereto (Leased Store Locations).
(c) Notwithstanding any term contained herein to the contrary, within sixty (60) days of the Closing Date are being terminated; and
(n) such other agreementsDate, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement Borrower shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior furnish to the proposed Closing Date specifying its objection thereto.Agent (with sufficient copies for the Lenders), the audited financial statements for the 1999 fiscal year of Mega Marts, Inc.
Appears in 1 contract
Sources: Credit Agreement (Roundys Inc)
Initial Credit Extension. The Administrative Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent’s receipt :
(i) Copies of the following, each articles or certificate of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer incorporation of the Borrower or and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and each Guarantor authorized to sign the Loan Documents to which it is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or such Guarantor.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's and each Guarantor's counsel, addressed to the Lenders in substantially the form of Exhibit D.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit E, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the case Agent may behave reasonably requested and the payment of all fees required in connection herewith.
(viii) All Guaranties signed by the Guarantors.
(ix) Copies of such financial statements of the Borrower and its Subsidiaries required by the Agent, each dated together with prospective financial information for the Closing Date (orBorrower and its Subsidiaries, in the each case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Agent.
(x) The Borrower and its Subsidiaries shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary in connection with the transactions contemplated by the Loan Documents, and each of the Lenders:foregoing shall be in full force and effect.
(axi) executed counterparts of this Agreement, sufficient in number for distribution to All liabilities and obligations under the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this existing Three-Year Credit Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of dated December 30, 2002, as amended, shall be paid in full and the credit facility thereunder shall be terminated (and the Borrower certifying (i) hereby agrees that the conditions specified in Sections 3.2(aany commitment to lend or other credit facility under such credit agreement is terminated), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;.
(hxii) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative The Agent shall have received for itself a certificate from the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property chief financial officer of the Borrower concerning the solvency and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel other appropriate factual information with respect to the Borrower and each Guarantorits Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent;.
(mxiii) evidence (includingSatisfactory results of all due diligence required by the Agent, including without limitationlimitation a review of all contingent liabilities, payoff letters a review of contracts and UCC termination statements)insurance, reasonably satisfactory a review of all litigation, environmental matters, all retiree medical benefits, ERISA matters and other due diligence with respect to the Administrative Borrower and its Subsidiaries as required by the Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and.
(nxiv) such other agreements, instruments, documents, certificates, and opinions as the Administrative The Agent may reasonably request. Without limiting the generality shall have determined that there is an absence of any material adverse change or disruption in primary or secondary loan syndication markets or in capital markets generally that would likely impair syndication of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Obligations hereunder.
(xv) The Agent shall have received notice from such Lender prior to other documents as the proposed Closing Date specifying Agent or its objection theretocounsel may have reasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make ------------------------ the followinginitial Credit Extension hereunder unless such initial Credit Extension occurs prior to October 22, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified1999, each properly executed by a Responsible Officer of the Upfront Fees are paid to the Lenders in immediately available funds and the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies Copies of the Borrower’s and each Guarantor’s articles or certificate of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or such Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or such Guarantor authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or such Guarantor.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender (including the Swing Line Note payable to the order of the Swing Line Lender).
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and substance signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) Information satisfactory to the Agent and the Required Lenders regarding the Borrower's Year 2000 Program.
(ix) The Pledge and Security Agreement and the Guaranty.
(x) Evidence reasonably satisfactory to the Administrative Agent;Agent that all obligations, liabilities and Indebtedness under the AmSouth Credit Agreement have been paid in full and all commitments thereunder have terminated and all liens granted in connection therewith have been released, including any UCC termination statements or releases executed in connection therewith.
(mxi) evidence (Evidence satisfactory to the Agent that the Borrower and each Subsidiary have fully cooperated with the Agent's syndication efforts including, without limitation, payoff letters by providing the Agent with information regarding the Borrower's and UCC termination statements), such Subsidiary's operations and prospects and such other information as the Agent deems reasonably satisfactory necessary to successfully syndicate the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; andLoans hereunder.
(nxii) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality A final copy of the provisions Acquisition Credit Agreement.
(xiii) If the initial Credit Extension will be the issuance of the last paragraph of Section 9.3a Facility LC, for purposes of determining compliance with the conditions specified in this Section 3.1, each a properly completed Facility LC Application.
(xiv) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Transit Group Inc)
Initial Credit Extension. The Administrative Agent’s receipt Lenders and the Issuer shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the followingarticles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall be originals or telecopies (followed promptly identify by originals) unless otherwise specified, each properly executed by a Responsible Officer name and title and bear the signatures of the officers of the Borrower or Guarantorauthorized to sign the Loan Documents to which the Borrower is a party, as upon which certificate the case may beAgent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) Evidence, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of Agent, that the Lenders:Borrower has obtained all governmental approvals necessary for it to enter into the Loan Documents.
(av) executed counterparts of this AgreementA certificate, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed signed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies an Authorized Officer of the Borrower’s , stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;is continuing.
(evi) copies of resolutions Written opinions of the Borrower’s 's counsel, addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2.
(vii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each Guarantor’s Board such requesting Lender.
(viii) Written money transfer instructions, in substantially the form of Directors (or similar governing body) authorizing Exhibit C, addressed to the execution, delivery Agent and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebysigned by an Authorized Officer, together with incumbency certificates and specimen signatures of such other related money transfer authorizations as the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;Agent may have reasonably requested.
(fix) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each GuarantorEvidence, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, of the termination of the Existing Agreement and the repayment in full of all outstanding obligations of the Borrower thereunder (it being understood that the Existing LC shall become a Letter of Credit Agreements have been or concurrently with hereunder on the Closing Date are being terminated; anddate of this Agreement).
(nx) such If the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(xi) Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent any Lender or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Initial Credit Extension. The This Agreement shall become effective upon and the obligation of the Lenders and the Issuers to make the initial Credit Extension hereunder is subject to the Administrative Agent’s receipt of (a) all fees required to be paid to the Administrative Agent, the Arrangers and the Lenders on the date hereof (including the reasonable fees and expenses of counsel to the Administrative Agent for which reasonably detailed invoices have been presented on or prior to the date hereof), (b) evidence that, prior to or concurrently with the effectiveness of this Agreement, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated, and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by an Authorized Officer of the Lenders:Borrower, stating that (A) on the date hereof, no Default or Unmatured Default has occurred and is continuing and (B) the representations and warranties contained in Article V are true and correct in all material respects as of the date hereof.
(av) executed A written opinion of the Borrower’s counsel, addressed to the Administrative Agent and the Lenders in a form reasonably satisfactory to the Administrative Agent and its counsel.
(vi) Executed counterparts of this AgreementAgreement executed by the Borrower, sufficient in number for distribution to the Administrative Agent, each Issuer and each Lender.
(vii) Any Revolving Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender and the Borrower;Swing Line Note.
(bviii) If the initial Credit Extension will be the issuance of a Note duly executed by the Borrower in favor Letter of each Lender requesting Credit, a Note;properly completed Letter of Credit Application.
(cix) the Guaranty duly executed by each Guarantor;
(d) copies Evidence of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions effectiveness of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Great Plains Credit Agreement and the other Loan Documents KCPL GMO Credit Agreement.
(x) Written money transfer instructions, in substantially the form of Exhibit C, addressed to which it is a party the Administrative Agent and signed by an Authorized Officer who has executed and delivered an incumbency certificate in accordance with the consummation of the transactions contemplated hereby and therebyterms hereof, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xi) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The effectiveness of this Agreement and the Lenders’ obligation to make the initial Credit Extension hereunder shall be subject to the satisfaction of the following conditions precedent: (a) the representations and warranties contained in Article V are true and correct as of such date, (b) the Administrative Agent’s receipt of , the following, each of which Arrangers and the Lenders shall be originals have received all fees and other amounts due and payable on or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before prior to the Closing Date) and each in form and substance satisfactory , including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent and the Arrangers required to be reimbursed or paid by the Borrower hereunder, (c) each Departing Lender shall have received payment in full of all of the “Obligations” under the Existing Credit Agreement that are owing to it (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, “Financial Contract Obligations”, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Documents” as defined in the Existing Credit Agreement), and (d) the Borrower has furnished to the Agents with sufficient copies for the Lenders:
(ai) executed counterparts A certificate of this Agreementthe Secretary or the Assistant Secretary of the Borrower and each Guarantor certifying as to (1) (A) the articles or certificate of incorporation (or equivalent thereof), sufficient in number for distribution to the Administrative Agenttogether with all amendments thereto, each Lender and the Borrower;
(b) a Note duly executed of such Loan Party, as certified by the Borrower appropriate governmental officer in favor its jurisdiction of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s organization, and each Guarantor’s articles of incorporation and bylaws by-laws (or comparable organizational governance documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
of such Loan Party; (e2) copies of the resolutions of the Borrower’s and each Guarantor’s Board of Directors Directors’ (or other similar governing body’s) and the resolutions or actions of any other body of such Loan Party authorizing the execution, delivery and performance execution of this Agreement and the other Loan Documents to which it is a party and (3) the consummation incumbency, identifying by name and title and bearing the signatures, of the transactions contemplated hereby Authorized Officers and thereby, together with incumbency certificates and specimen signatures any other officers of the persons such Loan Party authorized to execute such documents on sign the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior Loan Documents to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate party and, in the case of the Borrower signed Borrower, to request Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and applicable Loan Party.
(ii) that there has been no event or circumstance since December 31A certificate of good standing for each Loan Party, 2006 that has had or could be reasonably expected to have, either individually or certified by the appropriate governmental officer in the aggregate, a Material Adverse Effect;such Loan Party’s jurisdiction of organization.
(hiii) a list An opening compliance certificate in substantially the form of Exhibit B, signed by an Authorized Officer, showing the Authorized Representatives;calculations necessary to determine compliance with this Agreement on the Closing Date and stating that on the Closing Date no Default or Unmatured Default has occurred and is continuing.
(iiv) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable A written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;Agents and addressed to the Lenders in substantially the form of Exhibit A.
(mv) evidence Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vi) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(a) satisfactory audited consolidated financial statements of the Borrower for its 2018 and 2019 fiscal years, (b) satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (a) of this paragraph as to which such financial statements are available to the Lenders and (c) satisfactory financial statement projections through and including the Borrower’s 2024 fiscal year, together with such information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, payoff letters a detailed description of the assumptions used in preparing such projections).
(viii) A Transfer Authorizer Designation Form effective as of the Closing Date.
(ix) At least five (5) days prior to the Closing Date, all documentation and UCC termination statements)other information regarding the Borrower requested by the Administrative Agent or any Lender in order for the Administrative Agent and the Lenders to comply with the requirements of any Anti-Money Laundering Laws, reasonably satisfactory including the Act and any applicable “know your customer” rules and regulations.
(x) At least five (5) days prior to the Closing Date, to the Administrative Agent and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to the Borrower.
(xi) Satisfactory evidence that Borrower’s Private Shelf Agreement and any related facility documentation shall have become effective or shall become effective substantially concurrently with this Agreement, which Private Shelf Agreement shall reflect conforming changes consistent with the terms of this Agreement and otherwise be on terms and conditions acceptable to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and.
(nxii) such Such other agreementsdocuments as any Lender or its counsel may have reasonably requested including, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1without limitation, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each other document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless identified on the Administrative Agent shall have received notice from such Lender prior to the proposed List of Closing Date specifying its objection thereto.Documents attached hereto as Exhibit E.
Appears in 1 contract
Sources: Credit Agreement (Blueknight Energy Partners, L.P.)
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to ------------------------ make the followinginitial Credit Extension hereunder unless such initial Credit Extension occurs prior to , each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of 2000 and the Borrower or Guarantor, as has furnished the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of with ----------- sufficient copies for the Lenders:
(a1) executed counterparts Copies of this Agreementthe limited liability company agreement of the Borrower and the articles or certificate of incorporation of the Guarantor together with all amendments, sufficient in number for distribution to the Administrative Agentand a certificate of good standing, each Lender and certified by the Borrower;appropriate governmental officer in its jurisdiction of incorporation.
(b2) a Note duly executed Copies, certified by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies Secretary of the Borrower and the Guarantor of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it the Borrower or the Guarantor is a party and party.
(3) An incumbency certificate, executed by the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or the Guarantor evidencing authorized to sign the absence Loan Documents to which the Borrower or the Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of Liens on its Property except for Permitted Liens;any change in writing by the Borrower or the Guarantor.
(l4) A certificate, signed by the favorable written opinion chief financial officer of counsel the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(6) Any Note requested by a Lender pursuant to Section 2.10 payable to the Borrower and order of each Guarantorsuch requesting Lender.
(7) Written money transfer instructions, in substantially the form and substance reasonably satisfactory of Exhibit D, addressed to the Administrative Agent;Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(m8) This Agreement and the Guaranty.
(9) evidence If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(including10) Copies of all filings made with, without limitationor orders issued by, payoff letters FERC and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently all governmental authorities in connection with the Closing Date are being terminated; andformation and financing of the Borrower.
(n11) such A pro forma balance sheet as of January 1, 2001 (including a projected consolidated balance sheet and funds flow statement and a projected consolidated and consolidating income statement) and two year business plan for the Borrower.
(12) Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent any Lender or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts Copies of this Agreementthe articles or certificate of incorporation of the Borrower, sufficient in number for distribution to the Administrative Agenttogether with all amendments, and a certificate of good standing, each Lender and certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower;, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(biii) a Note duly An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in favor writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each Lender such requesting a Note;Lender.
(cvii) Written money transfer instructions, in substantially the Guaranty duly executed form of Exhibit D, addressed to the Agent and signed by each Guarantor;an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(dviii) If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(ix) The Borrower shall have delivered accurate and complete copies of the Borrower’s Agreement for Inventory Purchases, the Convertible Debenture and each Guarantor’s articles of incorporation the Senior Unsecured Notes and bylaws (or comparable organizational documents) agreements and instruments executed in connection therewith, including any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed with respect to such matters relating to those agreements as required by a Responsible Officer the Agent.
(x) The 364-Day Credit Agreement shall close simultaneously with this Agreement.
(xi) Payment in full and termination of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;National City Credit Agreement simultaneously with such initial Credit Extension.
(hxii) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Pioneer Standard Electronics Inc)
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrowers have furnished to the Administrative Agent’s receipt Agent with sufficient copies for the Lenders:
(i) Copies of the followingarticles or certificate of incorporation of each Borrower and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of each Borrower and each Guarantor, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which such Borrower or such Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Borrower or such Guarantor authorized to sign the Loan Documents to which such Borrower or such Guarantor is a party, upon which certificate the Administrative Agent and the Lenders shall be originals entitled to rely until informed of any change in writing by such Borrower or telecopies such Guarantor.
(followed promptly iv) A certificate, signed by originalsthe chief financial officer of the Company, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) unless otherwise specifiedA written opinion of the Borrowers' counsel and the Guarantors', each properly executed addressed to the Lenders in substantially the form of Exhibit H.
(vi) Any Notes requested by a Responsible Officer Lender pursuant to Section 2.14 payable to the order of the Borrower or Guarantor, as the case may be, each dated the Closing Date such requesting Lender.
(orvii) Written money transfer instructions, in substantially the case form of certificates of governmental officialsExhibit I, a recent date before the Closing Date) and each in form and substance satisfactory addressed to the Administrative Agent and each of signed by an Authorized Officer, together with such other related money transfer authorizations as the Lenders:Administrative Agent may have reasonably requested.
(aviii) executed counterparts If the initial Credit Extension will be the issuance of this Agreementa Facility LC, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;a properly completed Facility LC Application.
(bix) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the A Guaranty duly executed by each Guarantor;.
(dx) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (Such other documents as any Lender or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) counsel may have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Kaydon Corp)
Initial Credit Extension. The Administrative Agent’s receipt Lenders shall not be required to make the initial Credit Extension hereunder unless (x) the Borrowers have furnished to the Agent with sufficient copies for the Lenders of the following, each of which shall be originals or telecopies documents listed in subsections (followed promptly by originalsi) unless otherwise specified, each properly executed by a Responsible Officer of through (vi) below; (y) the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory Borrowers have furnished to the Administrative Agent the documents listed in subsections (vii) through (xii) below; and each (z) the Agent shall have received from the Borrowers, for the ratable benefit of the Lenders:
(a) executed counterparts of this Agreement, sufficient in number for distribution the facility fee agreed to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor and the Agent pursuant to that certain letter agreement dated June 18, 2002, or as otherwise agreed from time to time.
(i) Copies, as applicable, of the articles or certificate of incorporation or organization of each Lender requesting Borrower, together with all amendments, and a Note;certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation
(cii) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments theretoCopies, as applicable, certified in each instance by its the Secretary or Assistant Secretary;
(e) copies Secretary of each Borrower, of its code of regulations and/or by-laws and of the Board of Directors' resolutions or of resolutions or actions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) any other body authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it any Borrower is a party and required Rate Management Transactions or of its operating or other management agreement and of resolutions of its members and of any other body authorizing the consummation execution, delivery and performance of the transactions contemplated hereby Loan Documents to which such Borrower is a party and therebyrequired Rate Management Transactions.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Borrower authorized to sign the Loan Documents to which such Borrower is a party and documents in connection with required Rate Management Transactions, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Borrower.
(iv) A written opinion of the Borrowers' counsel, addressed to the Lenders in substantially the form of Exhibit A.
(v) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vi) Mortgage, substantially in the form of Exhibit G, with respect to the parcel or related parcels of real property or interests in such real property owned by MPW Container Management Corp. located in Cleveland, Cuyahoga County, Ohio.
(vii) Excluding the real property subject to the mortgage referred to in subsection (vi) above, a listing of each parcel or related parcels of real property or interests in such real property reasonably determined by the Agent to have a value of greater than $1,000,000; and within 90 days after the Effective Date, the Borrowers shall provide to the Agent appraisals, satisfactory to the Agent, prepared by an independent appraiser satisfactory to the Agent of such real property, which appraisals satisfy the requirements of the Financial Institutions Reform, Recovery and Enforcement Act, as amended, and the regulations promulgated thereunder, if applicable, and which shall evidence compliance with the supervisory loan-to-value limits set forth in the Federal Deposit Insurance Corporation Improvement Act of 1991, as amended, and the regulations promulgated thereunder, if applicable, together with incumbency certificates evidence of compliance with applicable federal regulations governing loans in areas having special flood hazards. Promptly thereafter, the applicable Borrower shall execute and specimen signatures deliver mortgages/deed of the persons authorized trusts, each substantially in form of Exhibit G, with respect to execute any such documents on the Borrower’s and each Guarantor’s behalf, all certified real property having an appraised value in each instance excess of $1,000,000 as determined by its Secretary or Assistant Secretary;such appraisals.
(fviii) copies The Security Agreement, the UCC Financing Statements and other Collateral Documents.
(ix) The insurance certificate described in Section 5.19.
(x) If the initial Credit Extension will include the issuance of a Facility LC, a properly completed Facility LC Application.
(xi) Written money transfer instructions, in substantially the certificates form of good standingExhibit D, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior addressed to the date hereof) from Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;Agent may have reasonably requested.
(gxii) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (MPW Industrial Services Group Inc)
Initial Credit Extension. 4.1.1 The Administrative Agent’s receipt Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished the following to the Agent with sufficient copies for the Lenders:
(i) this Agreement;
(ii) copies of the followingcertificate of formation or other applicable document of the Borrower, together with all amendments thereto, and certificates of good standing, each certified by the appropriate governmental officer in Louisiana and certificates of which shall be originals good standing from each other jurisdiction where the Borrower is qualified to transact business;
(iii) copies of the articles or telecopies (followed promptly by originals) unless otherwise specifiedcertificate of incorporation of the Parent together with all amendments thereto, and a certificate of good standing, each properly certified by the appropriate governmental officer in Delaware and certificates of good standing from each other jurisdiction where the Parent is qualified to transact business;
(iv) copies of the certificate of formation, organization, incorporation or other applicable document of each direct or indirect Subsidiary of the Borrower, together with all amendments thereto, and certificates of good standing, each certified by the appropriate governmental officer and certificates of good standing from each other jurisdiction where any such Subsidiary is qualified to transact business
(v) copies certified by the Secretary or Assistant Secretary of the Borrower of (i) its limited liability company agreement, and (ii) resolutions from its managers authorizing the execution of the Loan Documents to which it is a party;
(vi) copies certified by the Secretary or Assistant Secretary of the Parent of (i) its by-laws and (ii) resolutions of its Board of Directors authorizing the execution of the Loan Documents to which it is a party;
(vii) copies certified by the Authorized Officer of each Subsidiary of (i) its by-laws, limited liability company agreement or other similar document and (ii) resolutions of each such Subsidiary’s Managers, Members, or Board of Directors, as applicable, authorizing the execution of the Loan Documents to which it is a party;
(viii) incumbency certificates, executed by a Responsible the respective Secretary, Assistant Secretary or other Authorized Officer of the Borrower, the Parent and each Subsidiary which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers authorized to sign the Loan Documents to which the Borrower, the Parent and such Subsidiary, respectively is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(ix) a certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing;
(x) written opinions of counsel to the Borrower and the Guarantors addressed to the Agent and Lenders and their counsel in substantially the form of Exhibit D;
(xi) the Notes issued pursuant to Section 2.14 payable to the order of each Lender, and, if the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application;
(xii) the Deeds of Trust, executed by the Borrower or Guarantorthe Guarantors, as the case may be, each dated the Closing Date (orapplicable, in a form satisfactory to the case Agent, the Lenders and their counsel with respect to the Properties therein described, which are part of certificates of governmental officialsthe Collateral, a recent date before the Closing Date) and each such other agreements, documents and instruments as may be necessary and appropriate, in form and substance satisfactory to the Administrative Agent and the Lenders, executed and delivered by Borrower or the Guarantors, as applicable, , as mortgagor or assignor, in favor of the Agent, ratably for the benefit of the Lenders, in order to create and perfect the Lender Liens in and to all Collateral described therein;
(xiii) the Pledge Agreements, executed by the Parent, the Borrower and TDC Energy, in a form satisfactory to the Agent, the Lenders and their counsel with respect to the Properties therein described, which are a part of the Collateral;
(xiv) the Guaranties, executed by each Guarantor, in a form satisfactory to the Agent, the Lenders, and their counsel;
(xv) written money transfer instructions, in substantially the form of Exhibit E, addressed to the Agent and signed by an Authorized Officer of the Borrower, on behalf of the Borrower, together with such other related money transfer authorizations as the Agent may have reasonably requested;
(xvi) title opinions from counsel acceptable to the Agent, or title reviews satisfactory to the Agent, with respect to the Oil and Gas Properties included in the Collateral and in a form acceptable to the Agent and the Lenders, covering at least eighty percent (80%) of the aggregate PDP Reserves of such Oil and Gas Properties and seventy percent (70%) of the aggregate present worth of the aggregate Proved Reserves;
(xvii) the Initial Reserve Report upon which the initial Borrowing Base has been determined acceptable to all the Lenders;
(xviii) copies of any environmental reports regarding any environmental assessment of the Oil and Gas Properties included in the Collateral, which shall be acceptable to all Lenders;
(xix) the insurance certificate(s) described in Section 5.20;
(xx) detailed monthly projections (including balance sheets, income and cash flow statements) for the Parent, the Borrower and their Subsidiaries on a consolidated basis as of and for the period ending December 31, 2005, which projections shall be acceptable to the Lenders in their sole discretion;
(xxi) the Financial Statements described in Section 5.4;
(xxii) an Assignment of Notes, Liens and Security Interests in form an substance satisfactory to the Agent in its sole discretion, executed by each of the lenders currently party to the Prior Credit Agreement and
(xxiii) such other documents as any Lender or its counsel may have reasonably requested.
4.1.2 The Lenders shall not be required to make the initial Credit Extension hereunder unless the following conditions precedent are satisfied, to the satisfaction of the Agent and the Lenders:
(ai) executed counterparts the Agent and the Lenders shall have satisfactorily completed their normal and customary due diligence in connection with loans of the type contemplated by this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(bii) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence any Lender Rate Management Transactions (including, without limitation, payoff letters any Existing Rate Management Transactions) shall each be (or upon the execution, delivery and UCC termination statements), reasonably satisfactory filing of the Loan Documents creating the Lenders’ Liens each shall be) secured by the Lender Liens;
(iii) the Agent and the Lenders shall have reviewed and become satisfied with any changes in the composition of the Borrower’s Board of Directors and executive management occurring prior to the Administrative Agent, that date of the Existing initial Credit Agreements Extension;
(iv) there shall not have been any Material Adverse Effect on the Parent, the Borrower or concurrently with the Closing Date are being terminatedany of their Subsidiaries since September 30, 2005; and
(nv) such other agreements, instruments, documents, certificates, payment of all facility and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or administrative fees required to be satisfied with, each document or other matter required thereunder paid pursuant to be consented to or approved by or acceptable or satisfactory to a Lender unless any Loan Document and the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoFee Letter and legal fees and disbursements of Agent’s counsel.
Appears in 1 contract
Initial Credit Extension. The Lenders and the Issuers shall not be required to make the initial Credit Extension hereunder until the Borrower has furnished the Administrative Agent’s receipt Agent with (a) all fees required to be paid to the Lenders on the date hereof, (b) evidence that, prior to or concurrently with the initial Credit Extension hereunder, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the Chief Accounting Officer or the Chief Financial Officer of the Lenders:Borrower, stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and is continuing. 32
(av) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies A written opinion of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments theretocounsel, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents addressed to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, Lenders in a form and substance reasonably satisfactory to the Administrative Agent;Agent and its counsel.
(mvi) evidence Executed counterparts of this Agreement executed by the Borrower and each Lender.
(includingvii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(viii) If the initial Credit Extension will be the issuance of a Letter of Credit, without limitationa properly completed Letter of Credit Application.
(ix) Evidence of the effectiveness of the KCPL Credit Agreement, payoff letters and UCC termination statements)having terms substantially similar to the terms hereof.
(x) Written money transfer instructions, reasonably satisfactory in substantially the form of Exhibit C, addressed to the Administrative Agent, that the Existing Credit Agreements have been or concurrently Agent and signed by an Authorized Officer who has executed and delivered an incumbency certificate in accordance with the Closing Date are being terminated; and
(n) terms hereof, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xi) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the followinginitial Credit Extension hereunder unless the following conditions precedent have been satisfied or, each of which shall be originals or telecopies (followed promptly by originals) as applicable, unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as has furnished the case may be, each dated following to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and Agent each in form and substance satisfactory to the Administrative Agent and each of with sufficient copies for the Lenders, where appropriate, executed by the relevant Person and notarized except, in each case, as such shall be listed on Schedule 6.26:
(ai) executed counterparts Copies of this Agreementthe articles or certificate of incorporation or organization, sufficient in number for distribution to the Administrative Agentas applicable, each Lender and the Borrower;
(b) a Note duly executed by of the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyDomestic Subsidiaries that are Material Subsidiaries, together with incumbency certificates and specimen signatures all amendments, certified by the appropriate governmental officer in such Person's jurisdiction of organization or at Borrower's option, by an appropriate officer of Borrower or the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalfrelevant Subsidiary, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the along with certificates of good standing, standing and existence or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified authority to do business as a foreign corporation or organization;entity, as applicable.
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event Copies, certified by the Secretary or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property Assistant Secretary of the Borrower and each Guarantor evidencing its Domestic Subsidiaries that are Material Subsidiaries, as applicable, of their respective by-laws, operating or other management agreement and of resolutions of their respective boards of directors or members and of any other body authorizing the absence execution of Liens on its Property except for Permitted Liens;the Loan Documents to which such Person is a party.
(liii) Incumbency certificates, executed by the favorable written opinion Secretary or Assistant Secretary of counsel to the Borrower and its Domestic Subsidiaries that are Material Subsidiaries, as applicable, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers or managers of the Borrower and its Domestic Subsidiaries authorized to sign the Loan Documents to which such Person is a party, upon which certificates the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of each GuarantorGuarantor that is a Material Subsidiary certifying that on the initial Credit Extension Date such Guarantor is solvent, which certificate shall be, substantially in the form of Exhibit 4.1(iv) hereto.
(v) Both (a) a written opinion or opinions of the Borrower's counsel, addressed to the Lenders and covering such matters as may be required by Agent, in form and substance reasonably satisfactory to the Administrative Agent;, and (b) an enforceability opinion with respect to the Acquisition Agreement.
(mvi) evidence Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(includingvii) Written money transfer instructions, in substantially the form of Exhibit 4.1(vii), addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) The payment to the Agent and the Lenders of all (A) fees and expenses agreed upon by such Person and the Borrower (including those agreed to in that certain Agent and Fee Letter dated July 3, 2000).
(ix) This Agreement.
(x) The Collateral Documents.
(xi) The Subordination Agreement.
(xii) There shall not have occurred, in the Agent's sole discretion, a Material Adverse Effect in respect of the Borrower and its Subsidiaries on a consolidated basis since August 31, 1999 or in respect of the Stone & Webs▇▇▇ ▇▇▇ets from the pro forma financial statements dated July 1, 2000.
(xiii) There shall not have occurred, in the Agent's sole discretion, any material adverse change in primary and secondary loan syndication markets or capital markets generally that would impair syndication of the Loans.
(xiv) The insurance certificate described in Section 5.21.
(xv) Lien searches on the Borrower and each Guarantor in the jurisdictions requested by the Agent, together with waivers from the holders of any Liens (other than Permitted Liens) as deemed necessary by the Lenders.
(xvi) Evidence satisfactory to the Agent that all of the Borrower's Obligations (as defined in the Existing Facility) shall, simultaneously with the effectiveness of this Agreement, be paid in full with the proceeds of the Indebtedness incurred under this Agreement and the liens and security interests granted in connection therewith shall be terminated and released.
(xvii) Evidence satisfactory to the Agent that all of the outstanding obligations under the Note Purchase Agreement shall, simultaneously with the effectiveness of this Agreement, be paid in full with the proceeds of the indebtedness incurred under this Agreement and the liens and security interests granted in connection therewith shall be terminated and released.
(xviii) Evidence satisfactory to the Agent that the respective directors of the Borrower or its Subsidiary or Subsidiaries acquiring the Stone & Webs▇▇▇ ▇▇▇ets have approved the Stone & Webs▇▇▇ Acquisition and that all regulatory and legal approvals for the Stone & Webs▇▇▇ ▇▇▇uisition have been obtained.
(xix) Evidence satisfactory to Agent that the Acquisition Agreement has been approved by the judge presiding in the Stone & Webs▇▇▇ ▇▇▇kruptcy proceeding in the form of an order reasonably satisfactory to Agent authorizing the Stone & Webs▇▇▇ ▇▇▇uisition and ordering the same to be made free and clear of all liens, claims and encumbrances with respect to the Stone & Webs▇▇▇ ▇▇▇ets, except for minor encumbrances provided for in the Acquisition Agreement or the documents evidencing the conveyance of the Stone & Webs▇▇▇ ▇▇▇ets that are approved by Borrower and Agent.
(xx) Receipt and approval by Agent of all material terms relating to the Stone & Webs▇▇▇ ▇▇▇uisition.
(xxi) The representations and warranties contained in the Acquisition Agreement shall be accurate and all material conditions contained therein shall have been satisfied (other than the fact that the order approving the Stone & Webs▇▇▇ ▇▇▇uisition has not yet become final).
(xxii) Evidence satisfactory to the Agent of the payment of all Indebtedness owing by Stone & Webs▇▇▇, ▇▇cept as shown on Schedule 4.1(xxii), a copy of all documents evidencing or securing said Indebtedness and an agreement with the issuers of any Letters of Credit issued for the account of Stone & Webs▇▇▇ ▇▇ to the continuation thereof and release of all collateral securing such Letters of Credit.
(xxiii) Agent shall have received copies of any fairness opinion available to Borrower related to the Stone & Webs▇▇▇ Acquisition.
(xxiv) No litigation shall be pending that (i) has resulted in or requests an injunction or restraining order prohibiting the Stone & Webs▇▇▇ ▇▇▇uisition or the Loan, or (ii) could reasonably be expected, if adversely decided, to result in a Material Adverse Effect on Borrower or have a material adverse effect on the Stone & Webs▇▇▇ Assets as a whole.
(xxv) The calculation shown on Schedule 4.1(xxv) shall be true and correct, Borrower shall be in pro forma and historical compliance with all covenants contained in Article VI hereof, including specifically, without limitation, payoff letters and UCC termination statementsthose contained in Section 6.22 (but excluding the covenant contained in Section 6.22.2), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and.
(nxxvi) such A listing of all Investments in excess of $1,000,000 by the Borrower or a Domestic Subsidiary in any Foreign Subsidiary.
(xxvii) Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent any Lender or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Shaw Group Inc)
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts Copies of this Agreementthe articles or certificate of incorporation of the Borrower, sufficient together with all amendments thereto, and a certificate of good standing of the Borrower, each certified by the appropriate governmental officer in number its jurisdiction of incorporation; any other information required by Section 326 of the USA PATRIOT ACT or necessary for distribution the Agent or any Lender to verify the identity of Borrower as required by Section 326 of the USA PATRIOT ACT; and such comparable documents as Agent may require with respect to the Administrative AgentGuarantors.
(ii) Copies, each Lender and certified by the Secretary or Assistant Secretary of the Borrower;, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party and copies, certified by the Secretary, Assistant Secretary or comparable officer of each Guarantor of the Board of Directors’ resolutions and of resolutions or actions of any other party authorizing the execution of the Guaranty.
(biii) a Note duly An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Responsible Officials and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in favor of each Lender requesting a Note;writing by the Borrower; and such comparable certificates as Agent may require with respect to the Guarantors.
(civ) A certificate, signed by the Guaranty duly executed by each Guarantor;chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(dv) copies Written opinions of the Borrower’s and each Guarantor’s articles counsel, addressed to the Lenders in substantially the forms of incorporation Exhibits G-1 and bylaws G-2.
(or comparable organizational documentsvi) The Swing Line Note and any amendments thereto, certified in Notes requested by a Lender pursuant to Section 2.13 payable to the order of each instance by its Secretary or Assistant Secretary;such requesting Lender.
(evii) copies Written money transfer instructions, in substantially the form of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the executionExhibit H, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior addressed to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization Agent and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of Official, together with such other related money transfer authorizations as the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) Agent may have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;requested.
(hviii) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably Evidence satisfactory to the Administrative Agent;
Agent that all Indebtedness (mother than the Existing LCs) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that under the Existing Credit Agreements Agreement shall have been or concurrently with simultaneously paid in full and the Closing Date are being Existing Credit Agreement shall have been terminated; and.
(nix) such Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Ryland Group Inc)
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(a) executed counterparts Copies of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
certificate of incorporation (bor analogous organizational document(s)) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation;
(b) Copies, certified by the Secretary or Assistant Secretary of each of the Borrower and each Guarantor, of its respective bylaws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or such Guarantor (as applicable) is a party (or analogous documents);
(c) An incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or such Guarantor authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(d) A written opinion of the Borrower’s and Guarantors’ counsel, addressed to the Lenders, in substantially the form of Exhibit A;
(e) A certificate, signed by the Chief Financial Officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and substance reasonably satisfactory is continuing;
(f) Any Notes requested by a Lender pursuant to Section 2.16 payable to the order of each such requesting Lender;
(g) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative AgentAgent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(mh) evidence If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application;
(i) The insurance certificate described in Section 5.19;
(j) The Administrative Agent shall have determined that (a) since December 2, 2006, there has been no material adverse change or disruption in primary or secondary loan syndication markets, financial markets or in capital markets generally that would be likely to impair materially syndication of the Loans hereunder and (b) the Borrower has fully cooperated with the Administrative Agent’s syndication efforts including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to by providing the Administrative Agent, Agent with information regarding the Borrower’s operations and prospects and such other information as the Administrative Agent reasonably deems necessary to successfully syndicate the Loans hereunder;
(k) Evidence that (i) the Borrower shall have paid in full all principal of and interest accrued on the outstanding loans under the Existing Credit Agreements Agreement and all fees, expenses and other amounts owing by the Borrower thereunder and (ii) the Commitments (as defined in the Existing Credit Agreement) have been or concurrently with the Closing Date are being terminated; and
(nl) such Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent any Lender or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Clarcor Inc)
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies initial Credit Extension hereunder unless (followed promptly by originalsx) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory Borrowers have furnished to the Administrative Agent and each with sufficient copies for the Lenders of the Lenders:
documents listed in subsections (ai) executed counterparts of this Agreement, sufficient in number for distribution through (vii) below; (y) the Borrowers have furnished to the Administrative AgentAgent the documents listed in subsections (viii) through (xii) below; and (z) the Administrative Agent shall have received from the Borrowers a facility fee in the amount of $125,000, which facility fee shall be allocated by the Administrative Agent to the Lenders as follows: $40,000 to Bank One, $35,000 to National City Bank, $25,000 to LaSalle Bank, National Association, and $25,000 to SunTrust Bank, Central Florida, N. A.
(i) Copies, as applicable, of the articles or certificate of incorporation or organization of each Borrower and Guarantor, together with all amendments, and a certificate of good standing, each Lender and certified by the Borrower;appropriate governmental officer in its jurisdiction of incorporation
(bii) a Note duly executed Copies, as applicable, certified by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies Secretary of each Borrower and Guarantor, of its by-laws and of the Board of Directors' resolutions or of resolutions or actions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) any other body authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it any Borrower and Guarantor is a party and required Rate Management Transactions or of its operating or other management agreement and of resolutions of its members and of any other body authorizing the consummation execution, delivery and performance of the transactions contemplated hereby Loan Documents to which such Borrower and therebyGuarantor is a party and required Rate Management Transactions.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Borrower and Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Borrower and Guarantor authorized to sign the Loan Documents to which such Borrower or Guarantor is a party and documents in connection with required Rate Management Transactions, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Borrower or Guarantor.
(iv) A certificate, signed by the chief financial officer of each Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrowers' counsel, addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Such other documents as any Lender or its counsel may have reasonably requested.
(viii) The Security Agreement, the UCC Financing Statements and other Collateral Documents.
(ix) The insurance certificate described in Section 5.21.
(x) If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(xi) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or requested.
(xii) Such other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless documents as the Administrative Agent shall or its counsel may have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Sources: Credit Agreement (MPW Industrial Services Group Inc)
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not ------------------------ be required to make the initial Credit Extension hereunder unless:
(a) the Borrower has furnished to the Agent the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lenders and each of with sufficient copies for the Lenders:
(ai) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed counterparts by the Secretary or Assistant Secretary of this Agreementthe Borrower, sufficient which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent, the LC Issuer and the Lenders shall be entitled to rely until informed of any change in number for distribution writing by the Borrower.
(iv) Copies of the articles or certificate of incorporation of each Guarantor, together with all amendments, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation.
(v) Copies, certified by the Secretary or Assistant Secretary of each Guarantor, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which such Guarantor is a party.
(vi) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Guarantor authorized to sign the Loan Documents to which such Guarantor is a party, upon which certificate the Agent, the LC Issuer and the Lenders shall be entitled to rely until informed of any change in writing by such Guarantor.
(vii) A certificate, signed by an Authorized Officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(viii) A written opinion of the Borrower's and the Guarantors' counsel, addressed to the Administrative Agent, each Lender the Lenders and the Borrower;LC Issuer in substantially the form of Exhibit A.
(bix) Any Notes requested by a Note duly Lender pursuant to Section 2.16 payable to the order of each such requesting Lender.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(xi) A Guaranty executed by each Specified Domestic Subsidiary.
(xii) One or more Foreign Subsidiary Pledge Agreements executed by the Borrower and by each Domestic Subsidiary that holds shares in favor a Material Foreign Subsidiary, along with all certificates evidencing the shares pledged thereby duly endorsed or accompanied by executed stock powers and accompanied by such other documents, financing statements, opinions and information as the Agent or the Collateral Agent may require to assure the Collateral Agent's valid first priority Lien in the shares pledged thereby, free and clear of each Lender requesting a Note;all other Liens (except as may be permitted in such Foreign Subsidiary Pledge Agreements).
(cxiii) Evidence satisfactory to the Agent that (A) the Guaranty duly Credit Agreement dated as of September 23, 1997, as from time to time in effect, by and between the Borrower and Wachovia Bank, N.A., and (B) the Credit Agreement dated as of January 13, 2000, as from time to time in effect, by and between the Borrower and Bank One, shall have been or shall simultaneously on the date of closing of this Agreement be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Credit Extension hereunder be paid in full.
(xiv) A consent under or agreement amending the Note Purchase Agreement such that the Credit Extensions and the pledge of shares in the Material Foreign Subsidiaries do not result in a breach of the Note Purchase Agreement, executed by the lenders under the Note Purchase Agreement.
(xv) The Intercreditor Agreement executed by each Guarantor;party thereto.
(dxvi) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (Such other documents as any Lender or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) counsel may have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt effectiveness of this Agreement and the obligation of the following, each of which Lenders to make the initial Credit Extension hereunder shall be originals subject to the satisfaction of the following conditions precedent and, if applicable, the delivery by the Borrower to the Agent sufficient copies for the Lenders of:
(a) Copies of the certificate of formation of the Borrower, together with all amendments, certified by the appropriate governmental officer in the State of Delaware and certified by the secretary or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer assistant secretary of the Borrower and (b) a certificate of good standing, certified by the appropriate governmental officer in the State of Delaware.
4.1.2 Copies, certified by the secretary or Guarantorassistant secretary of the Borrower, of its limited liability company agreement and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
4.1.3 An incumbency certificate, certified by the secretary or assistant secretary of the Borrower, which shall (i) identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents (together with the Authorized Officers, being collectively, the “Designated Persons” and each being a “Designated Person”) to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower and (ii) certify as to the tax identification number and a business address of the Borrower, as well as any other information reasonably requested in writing by the case may be, each dated Agent or any Lender prior to the Closing Date as necessary for the Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the Patriot Act.
4.1.4 A certificate, signed by the chief financial officer or treasurer of the Borrower, stating that (a) as of the Closing Date, there are no material actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or, to the best of such officer’s knowledge, threatened against the Borrower in writing which could reasonably be expected to have a Material Adverse Effect, (b) as of the Closing Date, no event or condition has occurred since December 31, 2006 that has had or could reasonably be expected to have a Material Adverse Effect, (c) all material financial statements and information delivered to the Agent and the Lenders on or before the Closing Date were prepared in good faith and, in the case of certificates of governmental officialssuch financial statements, a recent date before in accordance with GAAP and (d) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated herein and therein to occur on the Closing Date, (A) no Default or Unmatured Default exists and each (B) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects on and as of the date made (except to the extent such representations and warranties expressly speak to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date).
4.1.5 A written opinion of the Borrower’s counsels, in form and substance satisfactory to the Administrative Agent and each of addressed to the Lenders:, in substantially the form of Exhibit A.
(a) executed counterparts of this Agreement, sufficient in number for distribution 4.1.6 Any Notes requested by a Lender pursuant to Section 2.13 payable to the Administrative Agentorder of each such requesting Lender.
4.1.7 Written money transfer instructions, each Lender in substantially the form of Exhibit D, addressed to the Agent and signed by a Designated Person, together with such other related money transfer authorizations as the Borrower;Agent may have reasonably requested.
(b) a Note 4.1.8 The Agent shall have received duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a from each party and the consummation hereto.
4.1.9 As of the transactions contemplated hereby and therebyClosing Date, together with incumbency certificates and specimen signatures of there shall be no material actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or threatened against the persons authorized Borrower which are reasonably likely to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for be decided adversely to the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office if so decided would have a Material Adverse Effect.
4.1.10 As of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a)Closing Date, (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance condition shall have occurred since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, have a Material Adverse Effect;.
(h) a list 4.1.11 The aggregate amount of Commitments of all Lenders on the Closing Date shall be not less than $250,000,000.
4.1.12 Completion prior to or concurrently herewith of the Authorized Representatives;
initial public offering (ithe “IPO”) of the initial fees called for limited partnership units of the MLP on terms consistent with the form S-1 (as amended) filed by Section 2.12 hereof;
(j) the Administrative Borrower with the SEC on November 29, 2007, with such amendments and modifications thereto which are not materially adverse to the Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;Lenders.
(k) financing statement, tax, and judgment lien search results against the Property of 4.1.13 Payment by the Borrower of all fees and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel expenses owed by it to the Borrower Lenders, the Agent and each Guarantorthe Arrangers which are due on the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters payment of the fees set forth in the Fee Letters.
4.1.14 Such other documents as any Lender or its counsel may have reasonably requested. The Agent shall promptly notify the Borrower and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with Lenders of the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificatesDate, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement such notice shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoconclusive and binding on all parties hereto.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly Lender will not lend any money to Debtor hereunder until this Agreement has been executed by a Responsible Officer of ▇▇▇▇▇▇, and ▇▇▇▇▇▇ shall have received the Borrower or Guarantorfollowing documents fully executed, as the case may bewhere applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent Lender and each of the Lendersits counsel:
(a) executed counterparts 17.1.1. Good Standing Certificates for Debtor certified by the Delaware Secretary of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender State and the BorrowerCalifornia Secretary of State;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a 17.1.2. The Note;
(c) the Guaranty duly 17.1.3. UCC–1 Financing Statements naming Debtor as “Debtor” and ▇▇▇▇▇▇ as “Secured Party”;
17.1.4. The Collateral Agreements, including, without limitation, a security agreement executed by each Guarantor;
(d) copies 17.1.5. Verification of termination of all UCC–1 and UCC–3 financing statements filed against Debtor and/or its property, other than those naming Lender as Secured Party;
17.1.6. Copies of certificates or other evidence satisfactory to Lender to the effect that Lender is additional insured, lender loss payee under the policies of insurance required by this Agreement;
17.1.7. A copy of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) of Debtor authorizing the execution, delivery and performance of this Agreement Agreement, the Note, the Collateral Agreements, and all other matters contemplated hereby, certified for accuracy and due adoption by the other Loan Documents to which it is a party and the consummation Secretary of Debtor as of the transactions contemplated hereby and therebydate hereof, together with such other necessary corporate action as Lender shall request;
17.1.8. A certificate, dated of even date herewith, signed by the Secretary of Debtor as to the incumbency certificates and specimen signatures signature of the person or persons authorized to execute such documents and deliver this Agreement, the Note, the Collateral Agreements, and any other instrument or agreement contemplated hereby;
17.1.9. A copy of the Articles of Incorporation and Bylaws of Debtor existing on the Borrower’s date hereof and each Guarantor’s behalfcopies of any documents creating, all evidencing or relating to preferred members’ rights, certified in each instance for accuracy and due adoption by its the Secretary or Assistant Secretaryof Debtor;
17.1.10. Beneficial Ownership Certification in relation to Debtor;
17.1.11. The Continuing Guaranty (fUnlimited) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and from each Guarantor (dated no earlier than 45 days prior to each, “Guaranty”);
17.1.12. A copy of the resolutions of each Guarantor authorizing the execution, delivery and performance of its Guaranty and the Collateral Agreements of such Guarantor, and all other matters contemplated hereby, certified for accuracy and due adoption by a principal officer of such Guarantor as of the date hereof) from the office of the secretary of state or , together with such other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business necessary action as a foreign corporation or organizationLender shall request;
(g) a certificate 17.1.13. A certificate, dated of the Borrower even date herewith, signed by a Responsible Officer principal officer of each Guarantor as to the incumbency and signature of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) person or persons authorized to execute and (e) have been satisfieddeliver its Guaranty and Collateral Agreements of such Guarantor, and (ii) that there has been no event any other instrument or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effectagreement contemplated hereby;
(h) a list 17.1.14. A copy of the Authorized RepresentativesArticles of Incorporation or Organization, as applicable, and Operating Agreement or Bylaws, as applicable, of each Guarantor existing on the date hereof and copies of any documents creating, evidencing or relating to preferred members’ rights, certified for accuracy and due adoption by a principal officer of such Guarantor;
(i) the initial fees called for by Section 2.12 hereof17.1.15. Disclaimer and consents from all mortgagees and/or lessors of real property from which Debtor operates or on which any Collateral is located;
(j) the Administrative Agent 17.1.16. Payoff letters and evidence of release of liens of such existing lenders of Debtor as Lender shall have received for itself the fees otherwise agreed to in writing among them and the Borrowerrequest;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens17.1.17. Updated Collateral Report;
(l) the favorable written opinion 17.1.18. Designation of counsel Authorization to the Borrower and each Guarantor, act on behalf of ▇▇▇▇▇▇;
17.1.19. Security Interest/Lien Subordination Agreement and/or Fixtures Disclaimer from any person or entity holding a lien on real estate owned or leased by Debtor in form and substance reasonably satisfactory acceptable to Lender and its counsel, disclaiming or subordinating any interest of such person or entity in any of the Administrative Agentequipment of Debtor constituting Collateral hereunder;
(m) evidence (including17.1.20. Tri-Party Agreement;
17.1.21. Legal Opinion of ▇▇▇▇▇▇’s and Guarantor’s Counsel;
17.1.22. Warehousemen Letters from all warehouses where inventory is stored;
17.1.23. Letter of Debtor authorizing advances to ▇▇▇▇▇▇’s account at JPMorgan Chase Bank, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the N.A.;
17.1.24. Closing Date are being terminatedStatement; and
17.1.25. Evidence satisfactory to Lender that the amount available for borrowing under Section 4 hereof is at least Twenty Million Dollars (n$20,000,000.00) such other agreementsafter paying all amounts owing to JPMorgan Chase Bank, instrumentsN.A., documentsall trade payables over thirty (30) days from the due date or sixty (60) days from the invoice date, certificatesall book overdrafts, including any held checks, and opinions as all costs of closing the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretotransactions contemplated hereby.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts Copies of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor articles or certificate of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies incorporation of the Borrower’s , together with all amendments, which may be dated more than ninety (90) days from the hereof, and a certificate of good standing, dated within ninety (90) days of the date hereof, each Guarantor’s articles certified by the appropriate governmental officer in its jurisdiction of incorporation and bylaws incorporation.
(or comparable organizational documentsii) and any amendments theretoCopies, certified in each instance by its the Secretary or Assistant Secretary;
(e) copies of resolutions Secretary of the Borrower’s , of its by-laws and each Guarantor’s of its Board of Directors (Directors' resolutions and of resolutions or similar governing body) actions of any other body authorizing the execution, delivery and performance execution of this Agreement and the other Loan Documents to which it the Borrower is a party and party.
(iii) An incumbency certificate, executed by the consummation Secretary or Assistant Secretary of the transactions contemplated hereby Borrower, which shall identify by name and thereby, together with incumbency certificates title and specimen bear the signatures of the persons authorized to execute such documents on the Borrower’s Authorized Officers and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or any other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate officers of the Borrower signed by a Responsible Officer of authorized to sign the Loan Documents to which the Borrower certifying (i) that the conditions specified in Sections 3.2(a)is a party, (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) upon which certificate the Administrative Agent and the Lenders shall have received for itself the fees otherwise agreed be entitled to rely until informed of any change in writing among them and by the Borrower;.
(kiv) financing statementA certificate, tax, and judgment lien search results against signed by the Property chief financial officer of the Borrower Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;is continuing.
(lv) the favorable A written opinion of counsel to the Borrower and each the Guarantor, in form and substance reasonably satisfactory addressed to the Administrative Agent;
(m) evidence (includingLenders in substantially the form of Exhibit A, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently together with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions regarding perfection of security interests as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved requested.
(vi) Any Notes requested by or acceptable or satisfactory to a Lender unless pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent shall and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have received notice from such Lender prior to reasonably requested.
(viii) Copies of documentation provided in Items (i), (ii), and (iii) (modified in the proposed Closing Date specifying its objection theretoevent of entities other than corporations) for each Guarantor.
Appears in 1 contract
Initial Credit Extension. The Lenders and the Issuers shall not be required to make the initial Credit Extension hereunder until the Borrower has furnished the Administrative Agent’s receipt Agent with (a) all fees required to be paid to the Lenders on the date hereof, (b) evidence that, prior to or concurrently with the initial Credit Extension hereunder, all obligations under the Existing Credit Facilities have been paid in full (other than four letters of credit which amount, in the aggregate, to $56,673,697 which will be governed by different documentation with the respective issuers going forward) and all commitments to lend thereunder have been terminated and (c) all of the following, in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the certificate of incorporation of the Borrower and the Guarantor, and together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower and the Guarantor, and a certificate of good standing, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower and the Guarantor, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower or the Guarantor as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer the Borrower and the Guarantor attaching the by-laws of the Borrower or Guarantor, as applicable and the case may beBoard of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of each dated of the Closing Date (orBorrower and the Guarantor, in which shall identify by name and title and bear the case signatures of certificates the Authorized Officers and any other officers of governmental officialsthe Borrower and the Guarantor authorized to sign the Loan Documents to which the Borrower or the Guarantor is a party, a recent date before the Closing Date) and each in form and substance satisfactory to upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of the Lenders:
(a) executed counterparts of this Agreement, sufficient any change in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed writing by the Borrower in favor of each Lender requesting a Note;or the Guarantor.
(civ) A certificate, signed by the Guaranty duly executed by each Guarantor;
(d) copies Treasurer or the Chief Financial Officer of the Borrower’s , stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and each is continuing and setting forth the Guarantor’s articles ▇▇▇▇▇’▇ Rating and the S&P Rating as of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;the Closing Date.
(ev) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable A written opinion of counsel to the Borrower and each the Guarantor, addressed to the Administrative Agent and the Lenders in a form and substance reasonably satisfactory to the Administrative Agent;Agent and its counsel.
(mvi) evidence Executed counterparts of this Agreement executed by the Borrower, the Guarantor, the Administrative Agent and each Lender.
(includingvii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender and the Swing Line Note.
(viii) If the initial Credit Extension will be the issuance of a Letter of Credit, without limitationa properly completed Letter of Credit Application.
(ix) Written money transfer instructions, payoff letters and UCC termination statements)in substantially the form of Exhibit C, reasonably satisfactory addressed to the Administrative Agent, that Agent and signed by an Authorized Officer of the Existing Credit Agreements have been or concurrently Borrower who has executed and delivered an incumbency certificate in accordance with the Closing Date are being terminated; and
(n) terms hereof, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(x) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make ------------------------ the followinginitial Credit Extension hereunder unless such initial Credit Extension occurs prior to October 22, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified1999, each properly executed by a Responsible Officer of the Upfront Fees are paid to the Lenders in immediately available funds and the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies Copies of the Borrower’s and each Guarantor’s articles or certificate of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of its bylaws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or such Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or such Guarantor authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or such Guarantor.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and substance signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) Information satisfactory to the Agent and the Required Lenders regarding the Borrower's Year 2000 Program.
(ix) The Pledge and Security Agreement and the Guaranty.
(x) Evidence reasonably satisfactory to the Administrative Agent;Agent that all obligations, liabilities and Indebtedness under the AmSouth Credit Agreement have been paid in full and all commitments thereunder have terminated and all liens granted in connection therewith have been released, including any UCC termination statements or releases executed in connection therewith.
(mxi) evidence (Evidence satisfactory to the Agent that the Borrower and each Subsidiary have fully cooperated with the Agent's syndication efforts including, without limitation, payoff letters by providing the Agent with information regarding the Borrower's and UCC termination statements), such Subsidiary's operations and prospects and such other information as the Agent deems reasonably satisfactory necessary to successfully syndicate the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; andLoans hereunder.
(nxii) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality A final copy of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Working Capital Credit Agreement.
(xiii) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt Lenders and the Issuer shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the followingarticles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall be originals or telecopies (followed promptly identify by originals) unless otherwise specified, each properly executed by a Responsible Officer name and title and bear the signatures of the officers of the Borrower or Guarantorauthorized to sign the Loan Documents to which the Borrower is a party, as upon which certificate the case may be, each dated Agent and the Closing Date Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(or, in the case of certificates of governmental officials, a recent date before the Closing Dateiv) and each Evidence,in form and substance satisfactory to the Administrative Agent and each of Agent, that the Lenders:Borrower has obtained all governmental approvals necessary for it to enter into the Loan Documents.
(av) executed counterparts of this AgreementA certificate, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed signed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies an Authorized Officer of the Borrower’s , stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;is continuing.
(evi) copies of resolutions A written opinion of the Borrower’s 's counsel, addressed to the Lenders in substantially the form of Exhibit A.
(vii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(viii) Written money transfer instructions, in substantially the form of Exhibit C, addressed to the Agent and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebysigned by an Authorized Officer, together with incumbency certificates and specimen signatures of such other related money transfer authorizations as the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;Agent may have reasonably requested.
(fix) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, Evidence,in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, of the termination of the Existing Agreement and the repayment in full of all outstanding obligations of the Borrower thereunder (it being understood that the Existing LC shall become a Letter of Credit Agreements have been or concurrently with hereunder on the Closing Date are being terminated; anddate of this Agreement).
(nx) such If the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(xi) Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent any Lender or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Initial Credit Extension. The This Agreement shall become effective upon and the obligation of the Lenders and the Issuers to make the initial Credit Extension hereunder is subject to the Administrative Agent’s receipt of (a) all fees required to be paid to the Administrative Agent, the Arrangers and the Lenders on the date hereof (including the reasonable fees and expenses of counsel to the Administrative Agent for which reasonably detailed invoices have been presented on or prior to the date hereof), (b) evidence that, prior to or concurrently with the effectiveness of this Agreement, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated, and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of the Borrower and the Guarantor, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower and the Guarantor, and a certificate of good standing, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower and the Guarantor, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower or the Guarantor as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of each of the Borrower and the Guarantor, of the by-laws of the Borrower or the Guarantor, as applicable, and the Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or the Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of each of the Borrower and the Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and the Guarantor authorized to sign the Loan Documents to which the Borrower or the Guarantor is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of the Lenders:
(a) executed counterparts of this Agreement, sufficient any change in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed writing by the Borrower in favor of each Lender requesting a Note;or the Guarantor.
(civ) the Guaranty duly executed A certificate, signed by each Guarantor;
(d) copies an Authorized Officer of the Borrower’s and each Guarantor’s articles of incorporation and bylaws , stating that (or comparable organizational documentsA) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof, no Default or Unmatured Default has occurred and is continuing and (B) from the office representations and warranties contained in Article VI are true and correct in all material respects as of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;date hereof.
(gv) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable A written opinion of counsel to the Borrower and each the Guarantor, addressed to the Administrative Agent and the Lenders in a form and substance reasonably satisfactory to the Administrative Agent;Agent and its counsel.
(mvi) evidence (includingExecuted counterparts of this Agreement executed by the Borrower, without limitationthe Guarantor, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that each Issuer and each Lender.
(vii) Any Revolving Notes requested by a Lender pursuant to Section 2.13 payable to the Existing order of each such requesting Lender and the Swing Line Note.
(viii) If the initial Credit Agreements have been or concurrently Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(ix) Evidence of the effectiveness of the Great Plains Credit Agreement and the KCPL Credit Agreement.
(x) Written money transfer instructions, in substantially the form of Exhibit C, addressed to the Administrative Agent and signed by an Authorized Officer of the Borrower who has executed and delivered an incumbency certificate in accordance with the Closing Date are being terminated; and
(n) terms hereof, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xi) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Lenders and the Issuers shall not be required to make the initial Credit Extension hereunder until the Borrower has furnished the Administrative Agent’s receipt Agent with (a) all fees required to be paid to the Lenders on the date hereof, (b) evidence that, prior to or concurrently with the initial Credit Extension hereunder, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the USA PATRIOT ACT. 31
(ii) Copies, certified by the Secretary or an Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the Chief Accounting Officer or the Chief Financial Officer of the Lenders:Borrower, stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and is continuing.
(av) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies A written opinion of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments theretocounsel, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents addressed to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, Lenders in a form and substance reasonably satisfactory to the Administrative Agent;Agent and its counsel.
(mvi) evidence Executed counterparts of this Agreement executed by the Borrower and each Lender.
(includingvii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(viii) If the initial Credit Extension will be the issuance of a Letter of Credit, without limitationa properly completed Letter of Credit Application.
(ix) Evidence of the effectiveness of the Great Plains Credit Agreement, payoff letters and UCC termination statements)having terms substantially similar to the terms hereof.
(x) Written money transfer instructions, reasonably satisfactory in substantially the form of Exhibit C, addressed to the Administrative Agent, that the Existing Credit Agreements have been or concurrently Agent and signed by an Authorized Officer who has executed and delivered an incumbency certificate in accordance with the Closing Date are being terminated; and
(n) terms hereof, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xi) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Lenders and the Issuers shall not be required to make the initial Credit Extension hereunder unless the Borrower has made payment to the Administrative Agent’s receipt Agent for the account of the followingLenders in immediately available funds the upfront fees payable under Section 2.4 and the Borrower has furnished to the Administrative Agent with sufficient copies for the Lenders:
(i) Copies of the restated articles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA Patriot Act or necessary for the Administrative Agent or any Lender to verify the identity of Borrower as required by Section 326 of the USA Patriot Act.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall be originals or telecopies (followed promptly identify by originals) unless otherwise specified, each properly executed by a Responsible Officer name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the date of this Agreement (a) the representations and warranties contained in Article V are true and correct in all material respects and (b) no Default or GuarantorUnmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower’s counsel, as addressed to the case may be, each dated Lenders in substantially the Closing Date form of Exhibit A.
(or, in vi) Any Note requested by a Lender pursuant to Section 2.10 payable to the case order of certificates of governmental officials, a recent date before the Closing Datesuch requesting Lender.
(vii) and each in form and substance Evidence satisfactory to the Administrative Agent and each of the Lenders:any required governmental approvals or consents regarding this Agreement.
(aviii) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Such other documents as any Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) counsel may have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Mge Energy Inc)
Initial Credit Extension. The Lenders' obligation to make the initial Credit Extension hereunder is subject to the Administrative Agent’s receipt Agent having received on or before the date of such initial Credit Extension all of the followingfollowing documents, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each in such number of counterparts as may be reasonably requested by the Administrative Agent and determined that all of the Lenders:
(a) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note following conditions precedent have otherwise been satisfied: The following Loan Documents duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly Persons indicated below: this Agreement executed by each Guarantor;
(d) copies Borrower and each member of the Borrower’s Bank Group, and the Guaranties executed by each Guarantor’s articles Guarantor in the form of incorporation Exhibit F, or in the case of the Parent's Guaranty, Exhibit F-2. A certificate of the secretary or an assistant secretary of the Parent certifying, inter alia, (1) to the extent required under the jurisdiction of its formation, true and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) correct copies of resolutions adopted by the board of directors or other appropriate body of the Borrower’s and each Guarantor’s Board of Directors Parent (or similar governing bodyA) authorizing the execution, delivery and performance by the Parent of this Agreement the Loan Documents to which it is or will be a party and the consummation of the transactions contemplated thereby, (B) authorizing Officers of the Parent to negotiate the Loan Documents on behalf of the Parent, (C) authorizing Officers of the Parent to execute and deliver the Loan Documents and any related documents, including, without limitation, any agreement or security document contemplated by this Agreement, and (D) authorizing the Eligible Share Repurchase and (2) the incumbency and, if such Officer is an individual, specimen signatures of the Officers of the Parent executing any Loan Documents to which it is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Parent. Extracts from the Dutch Commercial Register or other certificates of appropriate public officials as to the existence and good standing of the Parent in its jurisdiction of organization. A certificate of the secretary or an assistant secretary of the General Partner certifying, inter alia, true and correct copies of resolutions executed by the partners of the US Borrower (A) authorizing the execution, delivery and performance by the US Borrower of the Loan Documents to which it is a party and the Credit Extensions to be made thereunder and the consummation of the transactions contemplated hereby and thereby, together with (B) authorizing the General Partner to negotiate the Loan Documents on behalf of the US Borrower, and (C) authorizing the General Partner to execute and deliver on behalf of the US Borrower the Loan Documents and any related documents, including, without limitation, any agreement or security document contemplated by this Agreement. A certificate of the secretary or an assistant secretary of the General Partner certifying true and correct copies of the articles of incorporation and bylaws (or other similar charter documents) of the General Partner which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the US Borrower. Certificates of appropriate public officials as to (1) the existence of the US Borrower, and (2) the existence and good standing of the General Partner, in each case in its jurisdiction of organization. A certificate of the secretary or an assistant secretary of each Guarantor certifying, inter alia, (1) to the extent required under the jurisdiction of its formation, true and correct copies of resolutions adopted by the board of directors or other appropriate body of such Person (A) authorizing the execution, delivery and performance by such Person of the Loan Documents to which it is or will be a party and the consummation of the transactions contemplated thereby, and (B) authorizing Officers of such Person to execute and deliver the Loan Documents to which it is or will be a party and any related documents, including, without limitation, any agreement contemplated by this Agreement and (2) the incumbency certificates and and, if such Officer is an individual, the specimen signatures of the persons authorized Officers of such Person executing any Loan Documents to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower party. A certificate, signed by a Responsible Officer the chief financial officer or Treasurer of each Borrower, stating that on the Borrower certifying (i) that initial Credit Extension Date the conditions specified in Sections 3.2(a), (b), (c) and (e) Section 4.2 have been satisfiedsatisfied and that no Default or Unmatured Default has occurred and is continuing. Favorable written legal opinions in substantially the form of Exhibit A. Any Notes requested by a Lender pursuant to Section 2.15 payable to the order of each such requesting Lender. If the initial Credit Extension will be, and (ii) that there has been no event or circumstance since December 31includes, 2006 that has had or could be reasonably expected to have, either individually or in the aggregateissuance of a Facility LC, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the properly completed Facility LC Application. The Administrative Agent shall have received for itself determined that prior to the Execution Date, there is an absence of material adverse change in the Parent's financial condition and operations as reflected in the Parent's consolidated financial statements as of December 31, 2002 previously delivered to the Administrative Agent. Payment to the Administrative Agent and the Lenders of the fees otherwise agreed due to in writing among them and as of such date under the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance Loan Documents. Subordination Agreements reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory Agent subordinating all intercompany indebtedness among the Credit Parties to the Administrative Agent, that Obligations in the Existing Credit form of Exhibit G. Contribution and Indemnity Agreements have been or concurrently with among the Closing Date are being terminated; and
(n) such Guarantors apportioning the rights and obligations of each Guarantor in the form of Exhibit H. Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent or its counsel may have reasonably requestrequested. Without limiting Each Credit Extension. The Lenders shall not (except as otherwise set forth in Section 2.5.4 with respect to Revolving Loans for the generality purpose of repaying Swing Line Loans) be required to make any Credit Extension unless on the provisions applicable Credit Extension Date: There exists no Default or Unmatured Default. The representations and warranties contained in Article V are true and correct as of such Credit Extension Date except to the last paragraph extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of Section 9.3such earlier date. Each Borrowing Notice, or Swing Line Borrowing Notice or request for purposes issuance of determining compliance a Facility LC, as the case may be, with respect to each such Credit Extension shall constitute a representation and warranty by the Borrowers that the conditions specified contained in this Section 3.1, each Lender that has signed this Agreement shall be deemed to Sections 4.2(i) and (ii) have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobeen satisfied.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt effectiveness of this Agreement and the obligation of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date Lenders (or, in if applicable, the case of certificates of governmental officialsIssuer) to make the initial Credit Extension hereunder is subject to the conditions precedent that the Agent has received (a) evidence, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent, that (i) all obligations of the Borrowers under the Existing Credit Facilities (other than the Existing Letters of Credit) have been (or concurrently with the initial Credit Extension will be) paid in full; and (ii) all fees and (to the extent billed) expenses which are payable on or before the date of the initial Credit Extension to either Arranger, the Agent or any Lender hereunder or in connection herewith have been (or concurrently with the initial Credit Extension will be) paid in full; and (b) each of the Lenders:following documents (with sufficient copies for each Lender):
(ai) executed counterparts Copies of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor articles or certificate of incorporation of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any , together with all amendments thereto, certified by the Secretary or an Assistant Secretary of such Borrower, and certificates of good standing, certified by the appropriate governmental officer in each instance the jurisdiction(s) of incorporation of such Borrower.
(ii) Copies, certified by its the Secretary or Assistant Secretary;
(e) copies Secretary of each Borrower, of such Borrower's bylaws and of resolutions of the Borrower’s and each Guarantor’s its Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it such Borrower is a party party.
(iii) An incumbency certificate from each Borrower, executed by the Secretary or Assistant Secretary of such Borrower, which shall identify by name and title and bear the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons officers of such Borrower authorized to execute sign the Loan Documents to which such documents Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Borrower.
(iv) A certificate, signed by an Authorized Officer of PHI, stating that on the date of the initial Credit Extension no Default or Unmatured Default has occurred and is continuing with respect to any Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;.
(fv) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable A written opinion of internal counsel to PHI, substantially in the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;of Exhibit D-1.
(mvi) evidence (includingA written opinion of internal counsel to PEPCO, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to substantially in the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; andform of Exhibit D-2
(nvii) such other agreementsA written opinion of internal counsel to DPL, instrumentssubstantially in the form of Exhibit D-3.
(viii) A written opinion of internal counsel to ACE, documents, certificates, and opinions as substantially in the Administrative Agent may reasonably request. Without limiting the generality form of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoExhibit D-4.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(a) executed counterparts Copies of this Agreementthe articles or certificate of incorporation of the Borrower, sufficient in number for distribution to the Administrative Agenttogether with all amendments, and a certificate of good standing, each Lender certified by the appropriate governmental officer in its jurisdiction of incorporation and accompanied by a certification by the Borrower;Secretary or Assistant Secretary of the Borrower that there have been no changes in the matters certified by such governmental officer since the date of such governmental officer's certification.
(b) a Note duly executed Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower in favor of each Lender requesting is a Note;party.
(c) the Guaranty duly An incumbency certificate, executed by each Guarantor;the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(d) copies Copies of the Borrower’s and articles or certificate of incorporation or organization of each Guarantor’s articles , together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation or organization and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance case accompanied by its a certification by the Secretary or Assistant Secretary;Secretary of such Guarantor that there have been no changes in the matters certified by such governmental officer since the date of such governmental officer's certification.
(e) copies Copies, certified by the Secretary or Assistant Secretary of each Guarantor, of its by-laws or its operating or other management agreement and of resolutions of the Borrower’s and each Guarantor’s its Board of Directors (Director or similar governing body) members and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of this Agreement and the other Loan Documents to which it each Guarantor is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;party.
(f) copies An incumbency certificate, executed by the Secretary or Assistant Secretary of each Guarantor, which shall identify by name and title and bear the signatures of the certificates Authorized Officers and any other officers of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior authorized to sign the date hereof) from Loan Documents to which each Guarantor is a party, upon which certificate the office Agent and the Lenders shall be entitled to rely until informed of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of any change in writing by each state in which it is qualified to do business as a foreign corporation or organization;Guarantor.
(g) a certificate A certificate, signed by the chief financial officer of the Borrower signed by a Responsible Officer of Borrower, stating that on the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) initial Credit Extension Date no Default or Unmatured Default has occurred and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;is continuing.
(h) a list A written opinion of the Authorized Representatives;Borrower's and the Guarantors' counsel, addressed to the Lenders in substantially the form of Exhibit A.
(i) Any Notes requested by a Lender pursuant to Section 2.13 payable to the initial fees called for by Section 2.12 hereof;order of each such requesting Lender.
(j) Written money transfer instructions, in substantially the Administrative form of Exhibit D, addressed to the Agent shall and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have received for itself the fees otherwise agreed to in writing among them and the Borrower;reasonably requested.
(k) financing statementIf the initial Credit Extension will be the issuance of a Facility LC, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;a properly completed Facility LC Application.
(l) the favorable written opinion of counsel to the Borrower and A Guaranty executed by each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;Material Domestic Subsidiary.
(m) evidence (including, without limitation, payoff letters and UCC termination statements), Such other documents as any Lender or its counsel may have reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Initial Credit Extension. The Lenders and the Issuers shall not be required to make the initial Credit Extension hereunder until the Borrower has furnished the Administrative Agent’s receipt Agent with (a) all fees required to be paid to the Lenders on the date hereof, (b) evidence that all obligations under the Existing Credit Facilities have been (or, concurrently with the initial Credit Extension hereunder, will be) paid in full and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief accounting officer or the chief financial officer of the Lenders:Borrower, stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and is continuing.
(av) executed A written opinion of the Borrower's counsel, addressed to the Administrative Agent and the Lenders in substantially the form of Exhibit A.
(vi) Executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly Agreement executed by the Borrower in favor and each Lender.
(vii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each Lender such requesting a Note;Lender.
(cviii) If the Guaranty duly executed by each Guarantor;initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(dix) copies Evidence of the effectiveness of the Credit Agreement among KCPL, various financial institutions and JPMorgan, as administrative agent, having terms substantially similar to the terms hereof.
(x) A copy of the SEC Order authorizing the Borrower to incur the Indebtedness contemplated by the Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;.
(exi) copies Written money transfer instructions, in substantially the form of resolutions of Exhibit D, addressed to the Borrower’s Administrative Agent and each Guarantor’s Board of Directors (or similar governing body) authorizing signed by an Authorized Officer who has executed and delivered an incumbency certificate in accordance with the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyterms hereof, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xii) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The This Agreement shall become effective upon and the obligation of the Lenders and the Issuers to make the initial Credit Extension hereunder is subject to the Administrative Agent’s receipt of (a) all fees required to be paid to the Administrative Agent, the Arrangers and the Lenders on the date hereof (including the reasonable fees and expenses of counsel to the Administrative Agent for which reasonably detailed invoices have been presented on or prior to the date hereof), (b) evidence that, prior to or concurrently with the effectiveness of this Agreement, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated, and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender:
(i) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by an Authorized Officer of the Lenders:Borrower, stating that (A) on the date hereof, no Default or Unmatured Default has occurred and is continuing and (B) the representations and warranties contained in Article V are true and correct in all material respects as of the date hereof.
(av) executed A written opinion of the Borrower’s counsel, addressed to the Administrative Agent and the Lenders in a form reasonably satisfactory to the Administrative Agent and its counsel.
(vi) Executed counterparts of this AgreementAgreement executed by the Borrower, sufficient in number for distribution to the Administrative Agent, each Issuer and each Lender.
(vii) Any Revolving Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender and the Borrower;Swing Line Note.
(bviii) If the initial Credit Extension will be the issuance of a Note duly executed by the Borrower in favor Letter of each Lender requesting Credit, a Note;properly completed Letter of Credit Application.
(cix) the Guaranty duly executed by each Guarantor;
(d) copies Evidence of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions effectiveness of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this KCPL Credit Agreement and the other Loan Documents KCPL GMO Credit Agreement.
(x) Written money transfer instructions, in substantially the form of Exhibit C, addressed to which it is a party the Administrative Agent and signed by an Authorized Officer who has executed and delivered an incumbency certificate in accordance with the consummation of the transactions contemplated hereby and therebyterms hereof, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xi) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of the LendersAgent:
(a) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property Copies of the Borrower and each Guarantor evidencing the absence articles or certificate of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion incorporation of counsel to the Borrower and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in form its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and substance reasonably satisfactory each Guarantor, of their by-laws and of their Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower and each Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and such Guarantor authorized to sign the Loan Documents to which the Borrower and each Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or a Guarantor.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's and Guarantors' counsel, addressed to the Administrative Agent;Lenders in substantially the form of Exhibit A.
(mvi) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory Any Notes requested by a Lender pursuant to Section 2.13 payable to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; andorder of each such requesting Lender.
(nvii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting requested.
(viii) The insurance certificate described in Section 5.20.
(ix) If the generality initial Credit Extension will be the issuance of the provisions of the last paragraph of Section 9.3a Facility LC, for purposes of determining compliance with the conditions specified in this Section 3.1, each a properly completed Facility LC Application.
(x) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (i) the Borrower has furnished to the Administrative Agent’s receipt Agent with sufficient copies for the Lenders each of the following, following documents and (ii) each of which the following events shall be originals have occurred, as applicable (such date being the "Effective Date"):
(i) Copies of the articles or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer certificate of incorporation of the Borrower and each Material Domestic Subsidiary, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation and each other jurisdiction as requested by Administrative Agent, as well as any other information required by Section 326 of the USA PATRIOT ACT or Guarantornecessary for the Administrative Agent or any Lender to verify the identity of Borrower as required by Section 326 of the USA PATRIOT Act.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Material Domestic Subsidiary, of its by-laws and of the resolutions of its Board of Directors or executive committee as the case may bebe and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower and such Material Domestic Subsidiary is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each dated Material Domestic Subsidiary, which shall identify by name and title and bear the Closing signatures of the Authorized Officers and any other officers of the Borrower and each Material Domestic Subsidiary authorized to sign the Loan Documents to which the Borrower and such Material Domestic Subsidiary is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Borrowing Date no Default or Unmatured Default has occurred and is continuing.
(orv) A written opinion of the Borrower's counsel, addressed to the Administrative Agent and the Lenders in form and substance reasonably acceptable to the Administrative Agent.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the case form of certificates of governmental officialsExhibit C, a recent date before addressed to the Closing DateAdministrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(viii) This Agreement duly completed and executed by Borrower.
(ix) the Guaranty, the Security Agreement and the Subsidiary Security Agreement each in form and substance satisfactory reasonably acceptable to the Administrative Agent and each duly completed and executed by the Borrower or the Subsidiaries party thereto, as applicable.
(x) The insurance certificate described in Section 5.20 together with insurance certificates for all insurance required to be maintained pursuant to Section 4.3.2 of the Lenders:
(a) executed counterparts of this Agreement, sufficient in number for distribution to Security Agreement and the Subsidiary Security Agreement naming the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies on behalf of the Borrower’s Lenders, as loss payee for any casualty policies and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and additional insured for any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalfliability policies, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;.
(mxi) evidence A solvency certificate with respect to the Borrower and its Subsidiaries signed by an Authorized Officer of Borrower in form and substance reasonably acceptable to the Administrative Agent.
(including, without limitation, payoff letters xii) Copies of the Spin-Off Documents.
(xiii) The Principal Spin-Off Transactions shall have been consummated.
(xiv) A pay-off letter in form and UCC termination statements), substance reasonably satisfactory to the Administrative Agent, that Agent with respect to the Existing Credit Agreements. The Existing Credit Agreements shall have been or concurrently with the Closing Date are being terminated; andterminated and all outstanding indebtedness thereunder shall have been paid in full.
(na) Such duly completed UCC-1 financing statements as the Administrative Agent shall have previously requested to perfect its Lien in the Collateral; (b) copies of searches of financing statements filed under the Uniform Commercial Code with respect to the assets of the Borrower and its Domestic Subsidiaries in such other agreements, instruments, documents, certificates, and opinions jurisdictions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless ; and (c) such duly executed UCC-3 termination statements and similar documents as the Administrative Agent shall may request with respect to any security interests securing the obligations of the Borrower or its Subsidiaries under the Existing Credit Agreements.
(xvi) Such other documents as any Lender or its counsel may have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Viad Corp)
Initial Credit Extension. The Administrative Agent’s receipt obligation of each Lender to make its initial Credit Extension hereunder is subject to the followingconditions that such Credit Extension occurs on or before May 31, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of 1999 and that the Borrower or Guarantor, as has furnished to the case may beAgent with sufficient copies for the Lenders, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) hereof and each in form and substance satisfactory to the Administrative Agent and each of Agent, the Lendersfollowing:
(ai) This Agreement duly executed counterparts of this Agreementby the Borrower, sufficient in number for distribution the Lenders and the Agent.
(ii) Any Notes requested by a Lender pursuant to Section 2.14 payable to the Administrative Agentorder of each such requesting Lender in the face amount of the Commitment of such Lender.
(iii) The Guaranties, each Lender and one duly executed by the Borrower;
(b) respective Guarantors, together with a Note solvency certificate duly executed by the Borrower in favor of each Lender requesting a Note;and the respective Guarantors.
(civ) the Guaranty The Security Agreements, each one duly executed by each Guarantor;the respective Pledgors or the Borrower.
(dv) The Stock Pledge Agreement, duly executed by Borrower together with the stock certificates and instruments described in the schedules thereto endorsed in blank (or in the case of stock certificates, accompanied by appropriate stock powers).
(vi) The Note Pledge Agreements duly executed by Borrower, together with the intercompany promissory notes and other instruments described in the schedules thereto, in each case duly endorsed to the order of the Agent.
(vii) Copies of the certificate of incorporation of the Borrower, together with all amendments, and certificates of existence and good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(viii) A certificate of the Secretary of the Borrower certifying (a) copies of the resolutions of the Board of Directors or the Borrower approving this Agreement, the Notes, the Collateral Documents of the Borrower and the other Loan Documents of the Borrower and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the foregoing; and (b) that attached thereto are true and complete copies of the by-laws of the Borrower’s .
(ix) An incumbency certificate, executed by the Secretary of the Borrower, which shall identify by name and each Guarantor’s title and bear the signatures of Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(x) Copies of the articles or certificate of incorporation of each Obligor (other than the Borrower), together with all amendments, and bylaws (or comparable organizational documents) certificates of existence and any amendments theretogood standing, each certified by the appropriate governmental officer in each instance by its Secretary or Assistant Secretary;jurisdiction of incorporation.
(exi) A certificate of the Secretary of each Obligor (other than the Borrower) certifying (a) copies of the resolutions of the Borrower’s and each Guarantor’s Board of Directors or such Obligor approving the Loan Documents of such Obligor and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the foregoing; and (b) that attached thereto are true and complete copies of the by-laws of such Obligor.
(xii) An incumbency certificate for each Obligor (other than the Borrower), executed by the Secretary of such Obligor, which shall identify by name and title and bear the signatures of officers of such Obligor authorized to sign the Loan Documents to which such Obligor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Obligor.
(xiii) A certificate, signed by the chief financial officer of the Borrower, (a) stating that on the initial Credit Extension Date no Default or similar governing bodyUnmatured Default has occurred and is continuing, and (b) authorizing the execution, delivery and performance of indicating that after giving effect to this Agreement and the other Loan Documents and to the Acquisitions of the Founding Companies, the Borrower and each Obligor is solvent and is able to pay its debts and liabilities as they become due and will not be left with unreasonably small capital with which it is a party to engage in its respective business.
(xiv) A written opinion of Andr▇▇▇ & ▇urt▇ ▇▇▇, counsel to the Borrower and the other Obligors, addressed to the Agent and the Lenders in substantially the form of Exhibit K.
(xv) Written money transfer instructions, in substantially the form of Exhibit E, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(xvi) A certificate of an Authorized Officer certifying that attached thereto are true, correct and complete copies of the acquisition agreements for the Acquisitions of the Founding Companies, each of which must be on terms and conditions acceptable to the Agent and the Lenders and as described in the Private Placement Memorandum.
(xvii) Evidence of the consummation (including without limitation, that all necessary corporate, regulatory and legal appprovals have been obtained) of the Acquisition of each Founding Company.
(xviii) Evidence of the issuance of (a) approximately $5,765,000 of the Subordinated Seller Notes, (b) approximately $3,801,000 of the Sponsored Subordinated Notes, and (c) approximately $13,635,000 of Borrower Preferred Stock issued to certain shareholders of Chri▇▇▇▇▇▇▇▇ ▇▇▇ (d) not less than $30,000,000 under the Subordinated Bridge Facility, in each case prior to or substantially concurrent with the initial Credit Extension hereunder and as presented in Case 2.4.
(xix) Evidence that upon the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures Acquisitions of the persons authorized Founding Companies the Available Aggregate Commitment shall be at least $20,000,000.
(xx) Fully completed questionnaire with respect to execute such documents on Year 2000 Issues and related information satisfactory to the Agent and the Required Lenders regarding the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;'s Year 2000 Program.
(fxxi) copies If the initial Credit Extension will be or will include the issuance of the certificates of good standinga Facility LC, or the nearest equivalent in the relevant jurisdiction, a properly completed Facility LC Application.
(xxii) An insurance binder evidencing appropriate liability and casualty insurance for the Borrower and each Guarantor of the Founding Companies.
(dated no earlier than 45 days prior xxiii) Evidence of payment of fees owing to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;Lenders.
(gxxiv) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event Such other documents as any Lender or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Miller Mechanical Contractors Inc)
Initial Credit Extension. The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly Lender will not lend any money to Debtor hereunder until this Agreement has been executed by a Responsible Officer of Debtor, and Lender shall have received the Borrower or Guarantorfollowing documents fully executed, as the case may bewhere applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Lender and its counsel:
17.1.1. Certificates of Status for (i) Parent, Homette and ▇▇▇▇▇▇ certified by the Administrative Agent Indiana Secretary of State and (ii) Homes certified by the California Secretary of State, and (iii) for each of Parent and each Consolidated Subsidiary, from such other states in which such corporations are authorized to do business;
17.1.2. Note A;
17.1.3. UCC–1 Financing Statements naming Debtor as “Debtor” and Lender as “Secured Party”;
17.1.4. The Collateral Agreements, including, without limitation, each Mortgage;
17.1.5. Verification of termination of all UCC–1 and UCC–3 financing statements filed against Debtor and/or its property, other than those naming Lender as Secured Party.
17.1.6. Copies of certificates or other evidence satisfactory to Lender to the effect that Lender is the lender loss payee under the policies of insurance required by this Agreement;
17.1.7. With respect to each of Parent and each Consolidated Subsidiary a copy of the Lenders:
(a) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement Agreement, the Notes, the Collateral Agreements, and all other matters contemplated hereby, certified for accuracy and due adoption by the other Loan Documents to which it is a party and the consummation Secretary of such corporation as of the transactions contemplated hereby and therebydate hereof, together with such other necessary corporate action as Lender shall reasonably request;
17.1.8. With respect to each of Parent and each Consolidated Subsidiary, a certificate, dated of even date herewith, signed by the Secretary of Debtor as to the incumbency certificates and specimen signatures signature of the person or persons authorized to execute and deliver this Agreement, the Notes, the Collateral Agreements, and any other instrument or agreement contemplated hereby;
17.1.9. With respect to each of Parent and each Consolidated Subsidiary, a copy of the Articles of Incorporation and Bylaws of such documents corporation existing on the Borrowerdate hereof and copies of any documents creating, evidencing or relating to preferred shareholder’s rights, certified for accuracy and each Guarantor’s behalf, all certified in each instance due adoption by its the Secretary or Assistant Secretaryof such corporation;
(f) copies 17.1.10. Disclaimer and consents from all mortgagees and/or lessors of the certificates of good standing, real property from which Debtor operates or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in on which it any Collateral is qualified to do business as a foreign corporation or organizationlocated;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect17.1.11. Borrowing Base Certificate;
(h) a list 17.1.12. Designation of the Authorized RepresentativesAuthority to act on behalf of Debtor;
(i) the initial fees called for 17.1.13. Security Interest/Lien Subordination Agreement and/or Fixtures Disclaimer from any person or entity holding a lien on real estate owned or leased by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, Debtor in form and substance reasonably satisfactory acceptable to Lender and its counsel, disclaiming or subordinating any interest of such person or entity in any of the equipment of Debtor constituting Collateral hereunder;
17.1.14. Tri-Party Agreement;
17.1.15. Account Control Agreements with respect to the Administrative AgentOperating Account and each of the deposit accounts (other than depository accounts required to be closed following the Closing Date) and investment accounts identified on Schedule V;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory 17.1.16. Letter Reports with respect to the Administrative AgentReal Estate;
17.1.17. A flood hazard determination form, that confirming whether or not the Existing Credit Agreements have been Real Estate is in a flood hazard area and whether or concurrently with not flood insurance must be obtained, and, if the Closing Date are being terminated; andReal Estate is located in a flood hazard area, a policy of flood insurance.
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request17.1.18. Without limiting the generality Legal Opinion of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice Debtor’s Counsel;
17.1.19. Warehousemen Letters from such Lender prior to the proposed Closing Date specifying its objection thereto.all warehouses where inventory is stored;
Appears in 1 contract
Initial Credit Extension. The This Agreement shall become effective upon and the obligation of the Lenders and the Issuers to make the initial Credit Extension hereunder is subject to the Administrative Agent’s receipt of (a) all fees required to be paid to the Administrative Agent, the Arrangers and the Lenders on the date hereof (including the reasonable fees and expenses of counsel to the Administrative Agent for which reasonably detailed invoices have been presented on or prior to the date hereof), (b) evidence that, prior to or concurrently with the effectiveness of this Agreement, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated, and (c) all of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each Lender, and in sufficient copies for each Lender: .CHAR1\1170499v7
(i) Copies of the articles or certificate of incorporation of the Borrower and the GuarantorParent, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower and the GuarantorParent, and a certificate of good standing, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower and the GuarantorParent, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower or the GuarantorParent as required by Section 326 of the USA PATRIOT ACT.
(ii) Copies, certified by the Secretary or an Assistant Secretary of each of the Borrower and the GuarantorParent, of the by‑laws of the Borrower or the GuarantorParent, as applicable, and the Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or the GuarantorParent is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of each of the Borrower and the GuarantorParent, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and the GuarantorParent authorized to sign the Loan Documents to which the Borrower or the GuarantorParent is a party, upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of the Lenders:
(a) executed counterparts of this Agreement, sufficient any change in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed writing by the Borrower in favor of each Lender requesting a Note;or the GuarantorParent.
(civ) the Guaranty duly executed A certificate, signed by each Guarantor;
(d) copies an Authorized Officer of the Borrower’s and each Guarantor’s articles of incorporation and bylaws , stating that (or comparable organizational documentsA) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof, no Default or Unmatured Default has occurred and is continuing and (B) from the office representations and warranties contained in Article VI are true and correct in all material respects as of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;date hereof.
(gv) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable A written opinion of counsel to the Borrower and each Guarantorthe GuarantorParent, addressed to the Administrative Agent and the Lenders in a form and substance reasonably satisfactory to the Administrative Agent;Agent and its counsel.
(mvi) evidence (includingExecuted counterparts of this Agreement executed by the Borrower, without limitationthe GuarantorParent, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that each Issuer and each Lender.
(vii) Any Revolving Notes requested by a Lender pursuant to Section 2.13 payable to the Existing order of each such requesting Lender and the Swing Line Note.
(viii) If the initial Credit Agreements have been or concurrently Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(ix) Evidence of the effectiveness of the Great Plains Credit Agreement and the KCPL Credit Agreement.
(x) Written money transfer instructions, in substantially the form of Exhibit C, addressed to the Administrative Agent and signed by an Authorized Officer of the .CHAR1\1170499v7 Borrower who has executed and delivered an incumbency certificate in accordance with the Closing Date are being terminated; and
(n) terms hereof, together with such other agreements, instruments, documents, certificates, and opinions related money transfer authorizations as the Administrative Agent may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each requested.
(xi) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory Loan Parties have furnished to the Administrative Agent and each of with sufficient copies for the Lenders:.
(ai) executed This Agreement or counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note hereof shall have been duly executed by the Borrower in favor of each Lender requesting a Note;
(c) Borrower, the Guaranty Agent and the Lenders; and the Agent shall have received duly executed by each Guarantor;
(d) copies of the Borrower’s Loan Documents and each Guarantor’s articles of incorporation such other documents, instruments, agreements and bylaws (or comparable organizational documents) and any amendments thereto, certified legal opinions as the Agent shall reasonably request in each instance connection with the transactions contemplated by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyDocuments, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;.
(mii) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT or necessary for the Agent or any Lender to verify the identity of the Borrower as required by Section 326 of the USA PATRIOT Act.
(iii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iv) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(v) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(vi) A written opinion of the Borrower's counsel, addressed to the Lenders in substantially the form of Exhibit A.
(vii) Any Notes requested by a Lender pursuant to Section 2.15 payable to the order of each such requesting Lender.
(viii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(ix) If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) The Borrower shall have delivered executed copies of all Loan Documents to which it is a party.
(xi) The presentation of evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, Agent that the Existing Credit Agreements Agreement dated September 7, 2004, as amended, among the Borrower, and the lenders party thereto and the agent named therein shall have been terminated and all liens granted thereunder shall have been released and all indebtedness, has, and obligations outstanding thereunder shall have been paid in full or concurrently with will be paid from the Closing Date are being terminated; andproceeds of the initial Advance.
(nxii) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative The Agent shall have received notice from such Lender prior completed its business due diligence and the Borrower's corporate structure, capital structure, material accounts and governing documents shall be acceptable to the proposed Closing Date specifying Agent.
(xiii) The Borrower shall have delivered such other documents as the Agent, any Lender or its objection theretocounsel may have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Covansys Corp)
Initial Credit Extension. The Administrative Agent’s receipt Lenders shall not be required to make the initial Credit Extension hereunder or to renew the Credit Enhancement Letters of the following, each of which shall be originals or telecopies (followed promptly by originals) Credit unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of Agent, with sufficient copies for the Lenders:
(ai) Copies of the articles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed counterparts by the Secretary or Assistant Secretary of this Agreementthe Borrower, sufficient which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in number for distribution writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the Closing Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's and Guarantor's counsel, addressed to the Administrative Agent, each Lender Lenders in substantially the form of Exhibit A.
(vi) The Revolving Notes and the Borrower;
(b) a Note duly Term Notes, executed by the Borrower in favor payable to the order of each Lender requesting a Note;Lender.
(cvii) The Collateral Documents, executed (and acknowledged where applicable) by the Guaranty duly Borrower.
(viii) The Guaranty, executed by each the Guarantor;.
(dix) copies Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(x) Copies of the Borrower’s and each Guarantor’s articles or certificate of incorporation of the Guarantor, together with all amendments, and bylaws a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(or comparable organizational documentsxi) and any amendments theretoCopies, certified in each instance by its the Secretary or Assistant Secretary;
(e) copies Secretary of the Guarantor, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it the Guarantor is a party and party.
(xii) An incumbency certificate, executed by the consummation Secretary or Assistant Secretary of the transactions contemplated hereby Guarantor, which shall identify by name and thereby, together with incumbency certificates title and specimen bear the signatures of the persons officers of the Guarantor authorized to execute such documents on sign the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;Loan Documents to which the Guarantor is a party.
(fxiii) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior Evidence satisfactory to the date hereof) from Agent and the office of Lenders that the secretary of state or other appropriate governmental department or agency of liens and security interests granted to the state of its incorporation or organization Agent under the Collateral Documents are first and of each state in which it is qualified prior perfected lien and security interests, subject only to do business as a foreign corporation or organization;the liens, security interests and encumbrances permitted under Section 6.15.
(gxiv) a certificate of Endorsements to the Borrower signed by a Responsible Officer of title policies previously provided to Bank One with regard to the Borrower certifying (i) that ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Mortgage, the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Mortgage-Warehouse, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Mortgage-Mfg.
(i) advancing the initial fees called effective dates of such policies to the date of recording of the Mortgages, (ii) providing that the insured party is the Agent, for by Section 2.12 hereof;the benefit of the Lenders, and (iii) providing that the insured mortgages are the Mortgages.
(jxv) If an initial Credit Extension will be the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;issuance of a Facility LC, a properly completed Facility LC Application.
(kxvi) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on Such other documents as any Lender or its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance may have reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Sources: Credit Agreement (Dmi Furniture Inc)
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to ------------------------ make the followingTerm Loans or any initial Revolving Credit Advance, each of which the Swing Line Lender shall not be required to make Swing Line Loans and no LC Issuer shall be originals or telecopies (followed promptly by originals) required to issue a Facility LC hereunder, unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantorhas furnished to the Agent, as with sufficient copies for the case may beLenders, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each all in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(a) executed counterparts Copies of this Agreementthe articles or certificate of incorporation (or other comparable constituent document) of each of the Borrower and its Subsidiaries, sufficient together, in number for distribution to each case, with all amendments, and a certificate of good standing, both certified by the Administrative Agent, each Lender and the Borrower;appropriate governmental officer in its jurisdiction of organization.
(b) a Note duly executed Copies, certified by the Borrower in favor Secretary or Assistant Secretary of each Lender requesting a Note;of the Borrower and its Subsidiaries, of its by-laws (or other comparable governing document) and of its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the execution of the Borrower Credit Documents and Subsidiary Guaranties, as applicable.
(c) the Guaranty duly An incumbency certificate, executed by the Secretary or Assistant Secretary of each Guarantor;of the Borrower and its Subsidiaries, which shall identify by name and title and bear the signature of the officers of the Borrower and each Subsidiary, as applicable, authorized to sign the Borrower Credit Documents and Subsidiary Guaranties, as applicable, and, in the case of the Borrower, to make Credit Extensions hereunder, upon which certificate the Agent and, the LC Issuer, the Swing Line Lender and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(d) copies A certificate, signed by the chief financial officer of the Borrower’s , stating that on the initial Credit Extension Date (i) no Default or Unmatured Default has occurred and each Guarantor’s articles is continuing and (ii) no material adverse change in the business, financial condition, operations or prospects of incorporation and bylaws (the Borrower's or comparable organizational documents) and any amendments theretoof the Borrower's Subsidiaries' has occurred since the Borrower's consolidated financial statements as of December 31, certified in each instance by its Secretary or Assistant Secretary;2000.
(e) copies The written opinions of resolutions ▇▇▇▇▇ ▇▇▇▇ LLP, U.S. counsel to the Borrower and its Subsidiaries, and each Material Foreign Subsidiary's foreign counsel (if any), in the forms of the Borrower’s opinions attached hereto as Exhibit E, in each case --------- addressed to the Agent and each Guarantor’s Board of Directors the Lenders, with respect to the (or similar governing bodywithout limitation) authorizing the executiondue authorization, delivery execution and performance enforceability of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyCredit Documents, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;as applicable.
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable A written opinion of foreign counsel with respect to each Pledge Agreement (if any) to be delivered on the Closing Date, addressed to the Borrower Agent and each Guarantorthe Lenders, in form and substance reasonably satisfactory to the Administrative Agent;.
(mg) evidence A compliance certificate in substantially the form of Exhibit F hereto signed by the Borrower's chief financial --------- officer showing the calculations necessary to determine compliance with Sections 6.20, 6.21 and 6.22 of this ------------- ---- ---- Agreement.
(h) Written money transfer instructions, in substantially the form of Exhibit G hereto, addressed to the Agent and signed --------- by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(i) Evidence satisfactory to the Agent and its counsel that, concurrently with the Borrower's receipt of the initial Advance hereunder: (1) the entire principal amount (together with accrued interest and premium, if any) of the Existing Indebtedness shall be repaid in full (other than the Existing LCs) and (2) any and all lender commitments under the Existing Credit Agreement shall have been terminated.
(j) Evidence satisfactory to the Agent and its counsel that, concurrently with the Borrower's receipt of the initial Advances hereunder: (1) the entire principal amount (together with accrued interest and premium, if any) of Indebtedness of the Borrower and its Subsidiaries under the Interim Credit Agreement shall be repaid in full and (2) any and all lender commitments under the Interim Credit Agreement shall have been terminated.
(k) Promissory notes payable to each of the Lenders requesting promissory notes pursuant to Section 2.14(iv) hereof. ----------------
(l) Such other documents as the Agent or any Lender or its counsel may have reasonably requested including, without limitation, payoff letters and UCC termination statements)the Parent Guaranty, reasonably satisfactory to the Administrative AgentSubsidiary Guaranty, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificatesPledge Agreements, and opinions as each other document reflected on the Administrative Agent may reasonably request. Without limiting the generality List of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified Closing Documents attached in Exhibit H to this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto--------- Agreement.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Term Loan Lenders shall not be required to make the followingTerm Loans, each of which the Revolving Loan Lenders shall not be required to make any initial Revolving Credit Advance, the Swing Line Lender shall not be required to make Swing Line Loans, no LC Issuer shall be originals or telecopies (followed promptly by originals) required to issue a Facility LC hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantorhas furnished (if applicable) to the Agent, as with sufficient copies for the case may beLenders, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each all in form and substance satisfactory to the Administrative Agent and each of the LendersAgent:
(a) executed counterparts Copies of this Agreement, sufficient in number for distribution to the Administrative Agent, articles or certificate of incorporation (or other comparable constituent document) of each Lender of the Borrower and the Borrower;initial Obligor Subsidiaries, together, in each case, with all amendments, and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of organization, as well as any other information required by Section 326 of the USA Patriot Act, 31 U.S.C. Section 5318 or otherwise necessary for the Agent or any Lender to verify the identity of the Borrower and the initial Obligor Subsidiaries as required by Section 326 of the USA Patriot Act, 31 U.S.C. Section 5318.
(b) a Note duly executed Copies, certified by the Borrower in favor Secretary or Assistant Secretary of each Lender requesting a Note;of the Borrower and the initial Obligor Subsidiaries, of its by-laws (or other comparable governing document) and of its Board of Directors’ resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the execution of the Borrower Credit Documents and Subsidiary Guaranties, as applicable.
(c) the Guaranty duly An incumbency certificate, executed by the Secretary or Assistant Secretary of each Guarantor;of the Borrower and the initial Obligor Subsidiaries, which shall identify by name and title and bear the signature of the officers of the Borrower and each initial Obligor Subsidiary, as applicable, authorized to sign the Borrower Credit Documents, Subsidiary Guaranties and initial Collateral Documents, as applicable, and, in the case of the Borrower, to make Credit Extensions hereunder, upon which certificate the Agent and, the LC Issuer, the Swing Line Lender and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(d) copies A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date (i) no Default or Unmatured Default has occurred and is continuing and (ii) no material adverse change in the business, financial condition, operations or prospects of the Borrower’s and each Guarantoror any of the Borrower’s articles Subsidiaries’ has occurred since the Borrower’s consolidated financial statements as of incorporation and bylaws (or comparable organizational documents) and any amendments theretoDecember 31, certified in each instance by its Secretary or Assistant Secretary;2004.
(e) copies The written opinions of resolutions ▇▇▇▇▇ ▇▇▇▇ LLP, U.S. counsel to the Borrower and the initial Obligor Subsidiaries, and, to the extent requested by the Agent, each Material Foreign Subsidiary’s foreign counsel (if any), dated as of the Borrower’s Initial Funding Date and in the forms of the opinions attached hereto as Exhibit E, in each Guarantor’s Board of Directors case addressed to the Agent and the Lenders, with respect to the (or similar governing bodywithout limitation) authorizing the executiondue authorization, delivery execution and performance enforceability of this Agreement and the other Loan Credit Documents, as applicable.
(f) A written opinion of foreign counsel with respect to each Pledge Agreement (if any) to be delivered on the Initial Funding Date, addressed to the Agent and the Lenders, in form and substance satisfactory to the Agent.
(g) A compliance certificate in substantially the form of Exhibit F hereto signed by the Borrower’s chief financial officer showing the calculations necessary to determine compliance with Sections 6.20, 6.21 and 6.22 of this Agreement.
(h) Written money transfer instructions, in substantially the form of Exhibit G hereto, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(i) Evidence satisfactory to the Agent and its counsel that, concurrently with the Borrower’s receipt of the initial Advance hereunder: (1) the entire principal amount (together with accrued interest and premium, if any) of the Existing Indebtedness shall be repaid in full (other than the Existing LCs) or converted into the relevant Loans hereunder and (2) any and all lender commitments under the Existing Credit Agreement shall have been terminated.
(j) The Lenders, the Arrangers and the Agent shall have received (i) all fees required to be paid and (ii) reimbursement for all expenses for which invoices have been presented, in each case on or before the date hereof or the Initial Funding Date (as applicable).
(k) Promissory notes payable to each of the Lenders requesting promissory notes pursuant to Section 2.14(iv) hereof.
(l) Such other documents as the Agent or any Lender or its counsel may have reasonably requested including, without limitation, updates to the Schedules hereto reflecting changes that result from the ▇▇▇▇▇▇ Industries Acquisition, reaffirmations of the Parent Guaranty, the Subsidiary Guaranty, Pledge Agreements, and each other document reflected on the List of Closing Documents attached in Exhibit H to this Agreement.
(m) The ▇▇▇▇▇▇ Industries Acquisition shall have been consummated, substantially concurrently with the making of the initial Loans, in compliance with the following terms and conditions:
(i) All governmental and material third party approvals (including landlords’ consents, customer supply agreements consents, ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance, German and Norwegian antitrust clearance and other consents) necessary or, in the reasonable discretion of the Agent, advisable in connection with the ▇▇▇▇▇▇ Industries Acquisition, the financing contemplated hereby and the continuing operations of the Borrower and its Subsidiaries (including shareholder approvals, if any) shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which it is a party and would restrain, prevent or otherwise impose adverse conditions on the ▇▇▇▇▇▇ Industries Acquisition or the financing thereof.
(ii) There shall be no injunction or temporary restraining order which, in the reasonable judgment of the Agent would prohibit the funding of the Term Loans or the consummation of the transactions contemplated hereby ▇▇▇▇▇▇ Industries Acquisition; and therebythere shall be no litigation which would reasonably be expected to result in a material adverse effect on the Target and its subsidiaries, together taken as a whole.
(iii) The ▇▇▇▇▇▇ Industries Acquisition shall be consummated in accordance with incumbency certificates and specimen signatures the terms of the persons authorized to execute such documents on ▇▇▇▇▇▇ Industries Acquisition Merger Agreement and all applicable requirements of the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;law.
(fiv) copies of In order to finance the certificates of good standing▇▇▇▇▇▇ Industries Acquisition, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days shall have, on or prior to the date hereof) Initial Funding Date, caused to be released from escrow and received the net cash proceeds from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;Senior Subordinated Notes.
(gv) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative The Agent shall have received the most recent audited financial statements for itself the fees otherwise agreed to in writing among them and the Borrower;Target.
(kvi) financing statement, tax, Each of the Lenders shall have received consolidating pro forma balance sheets and judgment lien search results against the Property income statements of the Borrower as of the date of the most recently completed publicly reported consolidated quarterly balance sheet of the Borrower, giving effect to the ▇▇▇▇▇▇ Industries Acquisition and the financings contemplated thereby (including pursuant to this Agreement) as if such transactions had occurred on such date, prepared in accordance with Regulation S-X under the Securities Exchange Act of 1934 (as amended from time to time) for a registration statement on Form S-1. Each of the Arrangers and the Agent shall have received the written permission of the Borrower to include each Guarantor evidencing of the absence of Liens on its Property except for Permitted Liens;financial statements and financial projections referred to in the commitment letter related hereto in any marketing materials prepared in connection with this Agreement.
(lvii) the favorable written The Agent shall have reviewed a copy of any fairness opinion of counsel relating to the terms of the ▇▇▇▇▇▇ Industries Acquisition, if any such opinion is delivered in connection with the ▇▇▇▇▇▇ Industries Acquisition.
(viii) The Agent shall have received a certificate from the chief financial officer of the Borrower supporting the conclusions that after giving effect to the ▇▇▇▇▇▇ Industries Acquisition, the Borrower is solvent and each Guarantorwill be solvent subsequent to incurring the indebtedness in connection with the ▇▇▇▇▇▇ Industries Acquisition, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small capital with which to engage in its businesses.
(ix) The Agent shall have received evidence satisfactory to it of the prepayment of all obligations under existing loan facilities of the Target and its subsidiaries pursuant to payoff letters in form and substance reasonably satisfactory to the Administrative Agent;Agent and its counsel. The consummation of the ▇▇▇▇▇▇ Industries Acquisition and related transactions (financing or otherwise) shall not trigger any change of control rights under any indebtedness to remain outstanding after the Initial Funding Date.
(mx) evidence There shall not exist (includingpro forma for the ▇▇▇▇▇▇ Industries Acquisition and the financing thereof) any Unmatured Default or Default. Each of the Arrangers and the Agent shall be reasonably satisfied that the Borrower has not failed to comply with any of its material obligations under the commitment letter or the fee letters executed in connection herewith.
(xi) No material adverse change in the business, without limitation, payoff letters and UCC termination statementscondition (financial or otherwise), reasonably satisfactory operations, performance, properties or prospects of the Target and its subsidiaries, taken as a whole, shall have occurred since December 31, 2004. The Agent shall notify the Borrower of the date on which the foregoing conditions have been met, and such notice shall be conclusive and binding. Notwithstanding the foregoing, if the foregoing conditions are not satisfied (or waived pursuant to Section 8.3 and Section 8.4) at or prior to 5 p.m., Chicago time, on December 15, 2005, then, in such event, the Administrative AgentCommitments and this Agreement (other than those provisions hereof which by their terms survive termination) shall terminate at such time (it being understood and agreed that, that notwithstanding such termination, the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed continue to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying remain in full force and effect in accordance with its objection theretoterms).
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt Lenders and the Issuing Banks shall not be required to make the initial Credit Extension hereunder unless the following conditions precedent have been satisfied and the Borrower has furnished to the Agent with sufficient copies for the Lenders and the Issuing Banks:
4.1.1 Copies of the followingarticles or certificate of incorporation of the Borrower, together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
4.1.2 Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
4.1.3 An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall be originals or telecopies (followed promptly identify by originals) unless otherwise specified, each properly executed by a Responsible Officer name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
4.1.4 A certificate, signed by the Chairman, Chief Executive Officer, President, Executive Vice President, Chief Financial Officer, any Senior Vice President, any Vice President or Guarantorthe Treasurer of the Borrower, as stating that on the case may be, each dated the Closing initial Credit Extension Date (ora) no Default or Unmatured Default has occurred and is continuing, (b) all of the representations and warranties in Article V shall be true and correct in all material respects as of such date and (c) no material adverse change in the case business, financial condition or operations of certificates the Borrower and its Subsidiaries, taken as a whole, has occurred since December 31, 2003 except for the Disclosed Matters.
4.1.5 A written opinion of governmental officialsthe Borrower's counsel, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of addressed to the Lenders:, in substantially the form of Exhibit A.
(a) executed counterparts of this Agreement, sufficient in number for distribution 4.1.6 Any Notes requested by a Lender pursuant to Section 2.16 payable to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor order of each Lender such requesting a Note;Lender.
(c) 4.1.7 Written money transfer instructions, in substantially the Guaranty duly executed form of Exhibit D, addressed to the Agent and signed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyan Authorized Officer, together with incumbency certificates and specimen signatures of such other related money transfer authorizations as the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;Agent may have reasonably requested.
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying 4.1.8 The Agent shall have determined that (i) there is an absence of any material adverse change or disruption in primary or secondary loan syndication markets, financial markets or in capital markets generally that would likely impair syndication of the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfiedLoans hereunder, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing has fully cooperated with the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each GuarantorAgent's syndication efforts, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters by providing the Agent with information regarding the Borrower's operations and UCC termination statements), reasonably prospects and such other information as the Agent deems necessary to successfully syndicate the Loans hereunder.
4.1.9 Evidence satisfactory to the Administrative Agent, Agent that the Existing Credit Agreements shall have been or concurrently shall simultaneously with the effectiveness of this Agreement on the Closing Date are being terminated; and
be terminated (nexcept for those provisions that expressly survive the termination thereof) such other agreementsand all loans outstanding, instruments, documents, certificatesif any, and opinions as other amounts owed to the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3lenders or agents thereunder shall have been, for purposes of determining compliance or shall simultaneously with the conditions specified effectiveness of this Agreement, paid in this Section 3.1, each Lender full.
4.1.10 Evidence satisfactory to the Agent that has signed this the Five-Year Credit Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved been duly executed by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection all parties thereto.
4.1.11 All documentation and other information that any Lender shall reasonably have requested in order to comply with its ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the USA Patriot Act.
4.1.12 Such other documents as any Lender or its counsel may have reasonably requested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory Borrowers have furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts Copies of this Agreementthe articles or certificate of incorporation of each Borrower and each Guarantor, sufficient in number for distribution to the Administrative Agenttogether with all amendments, and a certificate of good standing, each Lender and certified by the Borrower;appropriate governmental officer in its jurisdiction of incorporation.
(bii) Copies, certified by the Secretary or Assistant Secretary of each Borrower and each Guarantor, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which such Borrower or such Guarantor is a Note duly party.
(iii) An incumbency certificate, executed by the Borrower in favor Secretary or Assistant Secretary of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s Borrower and each Guarantor’s articles , which shall identify by name and title and bear the signatures of incorporation the Authorized Officers and bylaws any other officers of such Borrower or such Guarantor authorized to sign the Loan Documents to which such Borrower or such Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by such Borrower or such Guarantor.
(iv) A certificate, signed by the chief financial officer of each Borrower, stating that on the initial Credit Extension Date no Default or comparable organizational documentsUnmatured Default has occurred and is continuing.
(v) A written opinion of the Borrowers' and Guarantor's counsel, addressed to the Lenders in substantially the form of Exhibit E; provided, that, the Company shall not be required to deliver on the Effective Date an opinion of counsel for Keit▇▇▇▇ ▇▇▇truments GmbH or any of the other documents for Keit▇▇▇▇ ▇▇▇truments GmbH required pursuant to Section 4.1(i), (ii) and (iii) above but the Agent reserves the right to request such an opinion of counsel and such other documents at any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;time after the Effective Date.
(evi) copies Any Notes requested by a Lender pursuant to Section 2.15 payable to the order of resolutions each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit F, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(viii) If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(ix) The Collateral Documents duly executed on behalf of the Borrower’s Guarantors granting to the Lenders and each Guarantor’s Board the Agent the support intended to be provided pursuant to Section 2.25.
(x) Copies of Directors (all governmental and nongovernmental consents, approvals, authorizations, declarations, registrations or similar governing body) authorizing filings required on the part of any Borrower or any Guarantor in connection with the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of or the transactions contemplated hereby and therebyor thereby or as a condition to the legality, together with incumbency certificates and specimen signatures validity or enforceability of the persons authorized to execute such documents on the Borrower’s Loan Documents, certified as true and each Guarantor’s behalf, all certified correct in each instance by its Secretary or Assistant Secretary;
(f) copies full force and effect as of the certificates Effective Date by a duly authorized officer of good standingthe Borrowers, or the nearest equivalent in the relevant jurisdictionif none is required, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of such officer to that effect.
(xi) The Borrowers shall have paid an arrangement fee to the Borrower signed Agent in an amount agreed to between the Agent and the Borrowers as referenced in Section 10.13.
(xii) Such other agreements and documents, and the satisfaction of such other conditions as may be required by the Agent, including without limitation a Responsible Officer subrogation and contribution agreement executed by the Borrowers and the Guarantors, such funding instructions, sources and uses certificate and other certificates required by the Agent and such evidence of the Borrower certifying (i) that perfection and priority of all liens and security interests as required by the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;Agent.
(hxiii) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall Such other documents as any Lender or its counsel may have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt Lenders shall not be required to make the Term Loans or initial Revolving Loans hereunder, the LC Issuers shall not be required to issue the initial Facility LC hereunder and the Swing Loan Lenders shall not be required to make any Swing Loans hereunder, unless (i) such initial Loans are made not later than January 31, 1996; (ii) the Marshalls Acquisition has been consummated (other than the payment of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer cash portion of the Borrower or Guarantor, as purchase price from the case may be, each dated the Closing Date Loans to be made hereunder); (or, in the case of certificates of governmental officials, a recent date before the Closing Dateiii) all fees and each in form and substance satisfactory expenses payable to the Administrative Agent and each the Co-Arrangers required to be paid as of such date have been paid; and (iv) the LendersBorrower has furnished to the Administrative Agent:
(a) executed counterparts Copies of this Agreementthe articles or certificate of incorporation of each of the Borrower and the Facility Guarantors, sufficient together with all amendments, and a certificate of good standing, in number each case certified not earlier than 15 Business Days prior to the initial Credit Extension Date by the appropriate governmental officer in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or Assistant Secretary of each of the Borrower and the Facility Guarantors, of its by-laws and of its Board of Directors' resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for distribution to the Administrative Agent, each Lender and the Borrower;
(b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (Co-Arrangers or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing bodyLender) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and Credit Documents.
(c) An incumbency certificate, executed by the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and Secretary of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence Facility Guarantors (the signature of Liens on its Property except for Permitted Liens;
(l) which Secretary or Assistant Secretary shall be independently certified by another officer of the favorable written opinion applicable Person), which shall identify by name and title and bear the signature of counsel to the officers of the Borrower and each Guarantorthe Facility Guarantors authorized to sign the Credit Documents and, in form and substance reasonably satisfactory with respect to the Administrative Agent;
(m) evidence (includingBorrower, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to request the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality making of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.Credit
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the Agent with sufficient copies for the Lenders:
(i) Copies of the followingarticles or certificate of incorporation, certificate of limited partnership or declaration of trust, as applicable, of the Borrower and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in the applicable jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of its by-laws or agreement of limited partnership, as applicable, and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or such Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall be originals or telecopies (followed promptly identify by originals) unless otherwise specified, each properly executed by a Responsible Officer name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or such Guarantor authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or such Guarantor.
(iv) A certificate, as signed by the case may bechief financial officer of the Borrower, each dated stating that on the Closing initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(orv) A written opinion of the Borrower's counsel, in addressed to the case of certificates of governmental officials, a recent date before the Closing Date) and each Lenders in form and substance satisfactory to the Administrative Agent and each of the Lenders:its counsel.
(avi) executed counterparts of this Agreement, sufficient in number for distribution Any Notes requested by a Lender pursuant to Section 2.14 payable to the Administrative Agent, order of each Lender and the Borrower;such requesting Lender.
(bvii) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance Executed originals of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby Subsidiary Guaranty substantially in the form attached hereto as Exhibit D, each of which shall be in full force and therebyeffect, together with incumbency certificates all schedules and specimen signatures of the persons authorized exhibits required to execute such documents on the Borrower’s be delivered pursuant hereto and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;thereto.
(fviii) copies Written money transfer instructions, in substantially the form of the certificates of good standingExhibit C, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior addressed to the date hereof) from Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;Agent may have reasonably requested.
(gix) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) Evidence that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are initial Credit Extension hereunder, the Prior Agreement is being terminated; andterminated and all amounts due and payable thereunder paid.
(nx) such Such other agreementsdocuments as any Lender, instruments, documents, certificates, and opinions as the Administrative Agent LC Issuer or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Initial Credit Extension. The In the case of the initial Credit Extension:
5.2.1 receipt by the Administrative Agent’s receipt Agent of the following:
(i) copies of the Certificate of Incorporation, and all amendments thereto, of the Borrower and each Guarantor, accompanied by a certificate that such copies are correct and complete, issued by the Secretary of State of the state of incorporation or formation of the Borrower and each Guarantor dated a current date;
(ii) copies of the Bylaws, and all amendments thereto, of the Borrower and each Guarantor, accompanied by a certificate that such copies are correct and complete of an authorized representative of the Borrower and each Guarantor dated the Effective Date;
(iii) certificates of the appropriate Governmental Authority of each jurisdiction in which the Borrower and each Guarantor has an executive office or principal place of business, the Borrower or such Guarantor was formed or in which any Collateral is located (if the Borrower or any Guarantor is required to qualify to do business in such state), each dated a current date, to the effect that the Borrower and each Guarantor is in good standing with respect to the payment of which shall franchise and/or other Taxes and, if required by law, is duly qualified to transact business in such jurisdiction;
(iv) certificates of incumbencies and signatures of all officers of the Borrower and each Guarantor who will be originals authorized to execute or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer attest any of the Loan Documents on behalf of the Borrower or a Guarantor, executed by an authorized representative of the Borrower or such Guarantor, dated the Effective Date;
(v) copies of resolutions approving the Loan Documents and authorizing the transactions contemplated therein, duly adopted by the Board of Directors of the Borrower and each Guarantor, accompanied by a certificate of an authorized representative of the Borrower and each Guarantor that such copies are true and correct copies of resolutions duly adopted at the meeting of, or by the unanimous written consent of, the Board of Directors (or authorized body serving a similar function) of the Borrower and each Guarantor, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified or revoked in any respect, and are in full force and effect as of the Effective Date;
5.2.2 receipt by the Administrative Agent of the documents, instruments and any deliveries described in Section 4.1, each duly executed and delivered by the appropriate Person;
5.2.3 receipt by the Administrative Agent of such title reports as the case Administrative Agent may bereasonably request, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(a) executed counterparts of this Agreement, sufficient in number for distribution from attorneys or other Persons reasonably acceptable to the Administrative Agent, each Lender covering and confirming indefeasible title in the BorrowerBorrower to no less than 90% of the PV10 Value of the Proved Reserve portion of the Oil and Gas Properties of the Borrower included in the Initial Reserve Report and such other documentation and information reasonably required by the Administrative Agent to satisfy the Administrative Agent of the status of the title of such portion of the Collateral;
(b) a Note duly executed 5.2.4 receipt by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies Administrative Agent of the Borrower’s and each Guarantor’s articles results of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions searches of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation UCC records of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified state in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for which the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization was organized and of each state in which it any Collateral is qualified to do business as a foreign corporation or organizationsituated reflecting no Liens on the Collateral except Liens in favor of the Administrative Agent and Permitted Liens;
5.2.5 receipt by the Administrative Agent of (gi) a certificate satisfactory proof of the Borrower's termination of the Existing Credit Facility and any obligations of the Borrower signed by a Responsible Officer of or the Borrower certifying (i) that lenders thereunder in connection therewith on the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, Effective Date and (ii) reasonably satisfactory evidence that there has been no event or circumstance since December 31prior Liens, 2006 that has had or could be reasonably expected to haveif any, either individually or in on any of the aggregate, a Material Adverse EffectOil and Gas Properties other than Permitted Liens are being released concurrently with the Closing;
(h) a list of the Authorized Representatives;
(i) the initial fees called for 5.2.6 receipt by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion opinions of counsel to the Borrower and each Guarantor, Guarantor in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (includingAgent and its counsel, without limitation, payoff letters including the opinions of local counsel in each jurisdiction in which the Mortgages are to be recorded. The Borrower and UCC termination statements), reasonably satisfactory each Guarantor hereby requests such counsel to deliver its opinions to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and;
(n) such other agreements, instruments, documents, certificates, and opinions as 5.2.7 receipt by the Administrative Agent may reasonably request. Without limiting of certificates of insurance acceptable to Administrative Agent from the generality Borrower's insurance broker, confirming insurance for the Borrower and each Subsidiary as of the provisions Effective Date meeting the standards of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.Section
Appears in 1 contract
Initial Credit Extension. The Lenders and the Issuers shall not be required to make the initial Credit Extension hereunder unless the Borrower has made payment to the Administrative Agent’s receipt Agent for the account of the followingLenders in immediately available funds the upfront fees payable under Section 2.4 and the Borrower has furnished to the Administrative Agent with sufficient copies for the Lenders:
(i) Copies of the restated articles or certificate of incorporation of the Borrower, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA Patriot Act or necessary for the Administrative Agent or any Lender to verify the identity of Borrower as required by Section 326 of the USA Patriot Act.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall be originals or telecopies (followed promptly identify by originals) unless otherwise specified, each properly executed by a Responsible Officer name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the date of this Agreement (a) the representations and warranties contained in Article V are true and correct in all material respects and (b) no Default or GuarantorUnmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower’s counsel, as addressed to the case may be, each dated Lenders in substantially the Closing Date form of Exhibit A.
(or, in vi) Any Note requested by a Lender pursuant to Section 2.10 payable to the case order of certificates of governmental officials, a recent date before the Closing Datesuch requesting Lender.
(vii) and each in form and substance Evidence satisfactory to the Administrative Agent and each of the Lenders:any required governmental approvals or consents regarding this Agreement.
(aviii) executed counterparts of this AgreementEvidence that the Amended and Restated Credit Agreement dated December 21, sufficient in number for distribution to the Administrative Agent, each Lender and 2005 among the Borrower;
, various financial institutions and JPMorgan Chase Bank, N.A. as administrative agent, has been terminated and all amounts payable thereunder (b) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (econtingent indemnity obligations) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or paid in the aggregate, a Material Adverse Effect;full.
(hix) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall Such other documents as any Lender or its counsel may have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably satisfactory to the Administrative Agent;
(m) evidence (including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless (a) the representations and warranties contained in Article V are true and correct as of such date and (b) the Company has furnished to the Administrative Agent’s receipt Agent with sufficient copies for the Lenders:
(i) Copies of the followingarticles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "Loan Party"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of each Loan Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall be originals or telecopies (followed promptly identify by originals) unless otherwise specified, each properly executed by a Responsible Officer name and title and bear the signatures of the Borrower or Guarantor, as Authorized Officers and any other officers of such Loan Party authorized to sign the case may be, each dated the Closing Date (orLoan Documents to which it is a party and, in the case of certificates the Borrowers, to request Loans hereunder, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of governmental officialsany change in writing by the applicable Loan Party.
(iv) An opening compliance certificate in substantially the form of Exhibit B, a recent date before signed by the Closing Datechief financial officer or treasurer of the Company, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of each Borrower's and each Guarantor's counsel, in form and substance satisfactory to the Administrative Agent and each addressed to the Lenders in substantially the form of the Lenders:Exhibit A.
(avi) executed counterparts Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of this Agreementeach such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a Facility LC, sufficient a properly completed Facility LC Application.
(viii) Written money transfer instructions, in number for distribution substantially the form of Exhibit D, addressed to the Administrative Agent, each Lender Agent and the Borrower;
(b) a Note duly executed signed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and therebyan Authorized Officer, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business related money transfer authorizations as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall may have received for itself the fees otherwise agreed to in writing among them and the Borrower;reasonably requested.
(kix) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, in form and substance reasonably Evidence satisfactory to the Administrative Agent;Agent that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(mx) evidence (Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and
(n) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless identified on the Administrative Agent shall have received notice from such Lender prior to the proposed List of Closing Date specifying its objection thereto.Documents attached hereto as Exhibit F.
Appears in 1 contract
Initial Credit Extension. The Administrative Agent’s receipt of Lenders shall not be required to make the following, each of which shall be originals or telecopies (followed promptly by originals) initial Credit Extension hereunder unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory has furnished to the Administrative Agent and each of with sufficient copies for the Lenders:
(ai) executed counterparts Copies of this Agreementthe articles or certificate of incorporation or articles of organization, sufficient in number for distribution to as applicable, of the Administrative AgentBorrower and the Existing Subsidiaries, together with all amendments, and a certificate of good standing or existence, as applicable, each certified by the appropriate governmental officer in its jurisdiction of incorporation as well as any other information required by Section 326 of the USA PATRIOT Act or necessary for the Agent or any Lender to verify the identity of Borrower or any Existing Subsidiary as required by Section 326 of the USA PATRIOT Act.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and the Borrower;Existing Subsidiaries, of their by-laws or operating agreement, as applicable, and of the resolutions or actions authorizing the execution of the Loan Documents to which the Borrower and the Existing Subsidiaries are a party.
(biii) a Note duly An incumbency certificate executed by the Secretary or Assistant Secretary of the Borrower and the Existing Subsidiaries which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and the Existing Subsidiaries authorized to sign the Loan Documents to which the Borrower and the Existing Subsidiaries are a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in favor of each Lender requesting a Note;writing by the Borrower or and Existing Subsidiary, as applicable.
(civ) A certificate, signed by the Guaranty duly executed by each Guarantor;chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(dv) copies A written opinion of the Borrower’s and each Guarantor’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments theretocounsel, certified in each instance by its Secretary or Assistant Secretary;
(e) copies of resolutions of the Borrower’s and each Guarantor’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Guarantor’s behalf, all certified in each instance by its Secretary or Assistant Secretary;
(f) copies of the certificates of good standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (dated no earlier than 45 days prior addressed to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization;
(g) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Authorized Representatives;
(i) the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion of counsel to the Borrower and each Guarantor, Lenders in form and substance reasonably satisfactory content acceptable to Lenders.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the Administrative Agent;order of each such requesting Lender.
(mvii) evidence (includingAny amendments or modifications to, without limitationor restatements of, payoff letters and UCC termination statements), reasonably satisfactory to the Administrative Collateral Documents as requested by Agent, that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated; and.
(nviii) such The Guaranty.
(ix) The insurance certificate described in Section 5.21.
(x) If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(xi) Such UCC and mortgage search information as deemed advisable by Agent.
(xii) Such other agreements, instruments, documents, certificates, and opinions documents as the Administrative Agent any Lender or its counsel may have reasonably request. Without limiting the generality of the provisions of the last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretorequested.
Appears in 1 contract