Initial Loans. The Commitment of each Lender to make its initial Loan is subject to the conditions that on or prior to the date of such Loan: (a) The Agent shall have received favorable written legal opinions of (i) (A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrower, and (B) Hunton & ▇▇▇▇▇▇▇▇, counsel to the Borrower, and (ii) King & Spalding, special New York counsel to the Agent, in each case dated the date hereof, addressed to the Agent and the Lenders and in form and substance satisfactory to the Agent. (b) The Agent shall have received (i) a copy of the certificate of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of incorporation of the Borrower, and a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors authorizing the execution and delivery by the Borrower of this Agreement, the Loans to be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the Borrower, dated the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof. (c) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent or any of the Lenders may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable). (d) The Lenders and the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Txu Corp /Tx/)
Initial Loans. The Commitment Prior to or concurrent with the making of each Lender to make its the initial Loan is subject to Loans, the conditions that on or prior to the date of such Loan:
(a) The Administrative Agent shall have received all of the following, each, except to the extent otherwise specified below, duly executed by a Responsible Officer, dated the date of the initial Loans (or such earlier date as shall be satisfactory to the Administrative Agent), in form and substance satisfactory to the Administrative Agent, and each in sufficient number of signed counterparts or copies to provide one for each Bank and the Administrative Agent:
11.1.1 If requested by a Bank, an appropriately completed Committed Note, payable to the order of such Bank evidencing such Bank's Revolving Commitment;
11.1.2 A favorable written legal opinions opinion of (i)
(A) ▇▇▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrower, and (B) Hunton & ▇▇▇▇▇▇▇▇, general counsel to of the BorrowerBorrower and its Significant Subsidiaries, substantially in the form of Exhibit L hereto, and (ii) King & Spalding, special New York counsel to addressing such other legal matters as the Agent, in each case dated the date hereof, addressed to the Administrative Agent and the Lenders and in form and substance satisfactory to the Agent.may require;
(b) The Agent shall have received (i) a copy of the 11.1.3 An officer's certificate of incorporation, including all amendments thereto, of the Borrower, certified substantially in the form of Exhibit M hereto, and dated as of the Closing Date, signed by a recent date Responsible Officer of the Borrower and attested to by the Secretary of State of the state of incorporation secretary thereof, together with certified copies of the Borrower's articles of incorporation, by-laws and a certificate as to directors resolutions;
11.1.4 Evidence of the good standing or certificates of compliance of the Borrower in the jurisdiction in which such entity was incorporated as of a recent date from such Secretary of State; (ii) a certificate the Closing Date;
11.1.5 Evidence that the Borrower paid to the Administrative Agent the fees and expenses provided for in the Fee Letter which are payable as of the Secretary or an Assistant Secretary Closing Date;
11.1.6 A letter from the Process Agent agreeing to receive service of process on behalf of the BorrowerBorrower pursuant to Section 15.11 hereof;
11.1.7 Certified copies of each material consent, dated license and approval (including, without limitation, any insurance commission approvals) required in connection with the date execution, delivery, performance, validity and enforceability of this Agreement and certifying (A) that attached thereto is a true the other Loan Documents; such consents, licenses and complete copy of the bylaws of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors authorizing the execution and delivery by the Borrower of this Agreement, the Loans to approvals shall be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that shall be satisfactory in form and substance to the Administrative Agent and shall be all of the material consents required to be obtained or made on or before the consummation of the financing contemplated by this Agreement;
11.1.8 A certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer Responsible Officer of the Borrower as to the incumbency and specimen signature that there are no material insurance regulatory proceedings pending or threatened against any of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) aboveInsurance Subsidiaries; and (iv) a CHAR_1\F:\DOCS\KAM\BANKING\218148_8 77
11.1.9 A certificate of a Responsible Officer of the Borrower, dated the date Closing Date, as to the matters set forth in Sections 11.3.2 through 11.3.5 hereof;
11.1.10 An officer's certificate signed by a Responsible Officer of this Agreementthe Borrower, stating certifying that (A) to such officer's best knowledge, since September 30, 1996, no action, consent event has occurred which individually or approval of, registration or filing with or other action by any Governmental Authority is or will in the aggregate could reasonably be required in connection with expected to have a Material Adverse Effect;
11.1.11 Evidence that the execution, delivery Cash Collateral Account has been established;
11.1.12 A payoff letter from the agent under the Existing Credit Agreement and performance by from NationsBank satisfactory to the Borrower Administrative Agent relating to the payment of this Agreement, except those as the Initial Indebtedness to be Refinanced including evidence that all commitments have been terminated and all loans have been paid thereunder;
11.1.13 Schedules and Exhibits satisfactory to the Administrative Agent and the Banks;
11.1.14 A Federal Reserve Form U-1 for each Bank, duly obtained executed by a Responsible Officer of the Borrower, the statements made in which shall be such, in the opinion of the Administrative Agent, as to permit the transactions contemplated by this Agreement in accordance with Regulation U;
11.1.15 Evidence satisfactory to the Administrative Agent that each of the Loan Documents has been duly executed and as are (1) delivered and is in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.
(c) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent or any of the Lenders may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable).
(d) The Lenders and the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this Agreement.effect without modification;
Appears in 1 contract
Sources: Credit Agreement (Conseco Inc Et Al)
Initial Loans. The Commitment At the time of the making by such Lender of its initial Loans hereunder, all obligations of the Borrower hereunder to the Agent or any Lender incurred prior to such initial Loan (including but not limited to the Borrower's obligation to reimburse the fees and disbursements of counsel to the Agent) shall have been paid in full, and the Agent shall have received the following, each dated as of the Closing Date, in form and substance reasonably satisfactory to the Agent with an original thereof for the Agent and with sufficient copies thereof for each Lender to make its initial Loan is subject (except that in the case of the Notes, the originals thereof shall be delivered to the conditions that on or prior to the date of such Loan:respective Lenders):
(a) The Agent shall have received favorable written legal opinions An executed certificate of the Secretary or Assistant Secretary of the Borrower setting forth (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrower, and (B) Hunton & ▇▇▇▇▇▇▇▇, counsel to the Borrower, and (ii) King & Spalding, special New York counsel to the Agent, in each case dated the date hereof, addressed to the Agent and the Lenders and certified resolutions of its board of directors in form and substance reasonably satisfactory to the Agent.
(b) The Agent shall have received (i) a copy with respect to the authorization of the Notes, this Agreement and the other Security Instruments to which it is a party; (ii) the officers of the Borrower (y) who are authorized to sign this Agreement, the Notes, and the other Security Instruments to which it is a party, and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, (iii) specimen signatures of the officers so authorized, and (iv) the articles or certificate of incorporation, including all amendments thereto, incorporation and the bylaws of the Borrower, certified as of a recent date by being true and complete. The Agent and the Secretary of State of Lenders may conclusively rely on such certificate until the state of incorporation of Agent receives notice in writing from the Borrower, and a certificate as Borrower to the good standing of the Borrower as of a recent date from such Secretary of State; contrary.
(iib) a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors authorizing the execution and delivery by the Borrower of this Agreement, the Loans to be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature Executed certificates of the Secretary or Assistant Secretary executing of each Guarantor that is a party to any Loan Document setting forth, in each case, (i) certified resolutions of its board of directors in form and substance reasonably satisfactory to the certificate pursuant Agent with respect to the authorization of the Loan Documents to which such Guarantor is a party; (ii) above; the officers of the Guarantor (y) who are authorized to sign the Loan Documents to which such Guarantor is a party, and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with the Loan Documents and the transactions contemplated thereby, (iii) specimen signatures of the officers so authorized, and (iv) a the articles or certificate of a Responsible Officer incorporation and the bylaws of each such Guarantor, certified as being true and complete. The Agent and the Borrower, dated Lenders may conclusively rely on such certificates until the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required Agent receives notice in connection with writing from the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, relevant Guarantor to the knowledge of such personcontrary. CREDIT AGREEMENT August 29, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.1996
(c) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent or any Certificates of the Lenders may have reasonably requested, in form satisfactory appropriate state agencies with respect to the Agent or Lender (if applicable)valid existence and good standing of the Borrower and each Guarantor.
(d) The Lenders Notes, duly completed and executed.
(e) The Security Instruments listed on EXHIBIT D hereto, duly completed and executed in sufficient number of counterparts for recording purposes, as applicable.
(f) An opinion of counsel to the Borrower in substantially the form of EXHIBIT E hereto.
(g) Appropriate UCC search certificates reflecting no prior Liens or security interests other than Liens permitted by SCHEDULE 6.02.
(h) A certificate of insurance coverage of the Borrower evidencing that the Borrower is carrying insurance in accordance with Section 4.19 and SCHEDULE 4.19 hereof.
(i) A compliance certificate in substantially the form of EXHIBIT F, reflecting that no Default or Event of Default has occurred and is continuing.
(j) Each of the Designated Contracts.
(k) Evidence reasonably satisfactory to the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices that the following mergers have been presented consummated:
(i) Each of AmHealth Kidney Center of the Valley, Ltd., Weslaco Kidney Center, Ltd., Starr Dialysis Center, Ltd., and Mission Kidney Center, Ltd. with and into STAT Dialysis Corporation; and
(ii) Each of AmHealth Medical Management, Ltd., Brownsville Hyperbaric Healthcare, Ltd., Southwestern Infusion Healthcare, Ltd., and AmHealth Ambulatory Healthcare, Ltd. with and into STAT Management Corporation.
(l) Such other documents as and when due on the Agent or prior special counsel to the date of the initial Loans pursuant to the terms of this AgreementAgent may reasonably request.
Appears in 1 contract
Initial Loans. The Commitment of each Lender to make its initial Loan on or after the date hereof is subject to the conditions that on or prior to the date of such Loan:
(a) The Agent shall have received favorable written legal opinions of (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ Thelen Reid & Priest LLP, special New York counsel to the Borrower, and (B▇) Hunton & ▇▇▇▇▇▇▇▇▇ & Williams LLP, counsel to the Borrower, and (ii) King & SpaldingSpalding LLP, special ▇▇▇▇▇▇l New York counsel to the Agent, in each case dated the date hereof, addressed to the Agent and the Lenders and in form and substance satisfactory to the Agent.
(b) The Agent shall have received (i) a copy of the certificate of incorporationformation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of incorporation formation of the Borrower, and a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary or analogous officer of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws limited liability company agreement of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board board of Directors directors or managers (or any duly authorized committee thereof) of the Borrower authorizing the execution and delivery by the Borrower of this Agreement, the Loans to be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation formation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary or analogous officer executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the Borrower, dated the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.
(c) The Agent shall have received documentation and information required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(d) The Agent shall have received evidence satisfactory to it of the execution and delivery of the TXU Corp. Agreement and the TXU Gas Agreement.
(e) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent Agent, or any of the Lenders may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable)and the requesting Lender.
(df) The Lenders Lenders, the Agent and the Agent Sole Lead Arranger named in the Letter Agreements shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans Loan pursuant to the terms of this AgreementAgreement or the Letter Agreements.
Appears in 1 contract
Sources: Credit Agreement (Txu Corp /Tx/)
Initial Loans. The Commitment of each Lender Notwithstanding any provision contained in this Agreement to the contrary, no Bank shall have any obligation to make its the initial Loan is subject to Loan(s) under this Agreement unless the conditions that on or prior to the date of such LoanAdministrative Agent shall have first received:
(a) The Agent this Agreement and the Notes, each executed by a duly authorized officer of Borrower;
(b) a copy of resolutions of the Board of Directors of Borrower, duly adopted, which authorize the execution, delivery and performance of this Agreement, the Notes and the other Transaction Documents, certified by the Secretary of Borrower;
(c) a copy of the Articles of Incorporation of Borrower, including any amendments thereto, certified by the Secretary of Borrower;
(d) a copy of the Bylaws of Borrower, including any amendments thereto, certified by the Secretary of Borrower;
(e) an incumbency certificate, executed by the Secretary of Borrower, which shall have received favorable written legal opinions identify by name and title and bear the signatures of all of the officers of Borrower executing any of the Transaction Documents;
(f) a certificate of corporate good standing of Borrower issued by the Secretary of State of the State of Missouri;
(g) an opinion of General Counsel of Borrower in the form attached hereto as Exhibit B;
(h) the Notice of Borrowing required by Section 2.02;
(i) evidence satisfactory to the Administrative Agent that the Existing Loan Agreement has been terminated and any existing indebtedness of Borrower thereunder has been paid in full (or will be paid in full with the proceeds of the initial Loan(s) under this Agreement);
(Aj) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrower, and a letter (B) Hunton & ▇▇▇▇▇▇▇▇, counsel to the Borrower, and (ii) King & Spalding, special New York counsel to the Agent, in each case dated the date hereof, addressed to the Agent and the Lenders and which must be in form and substance satisfactory to the Agent.Agent and each Bank) executed by Borrower with respect to the payment of certain upfront fees to the Banks; and
(bk) The Agent shall have received (i) a copy of the certificate of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of incorporation of the Borrower, and a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors authorizing the execution and delivery by the Borrower of this Agreement, the Loans to be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the Borrower, dated the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.
(c) The Agent shall have received such other approvalsagreements, opinions, certificatesdocuments, instruments and documents certificates as the Administrative Agent or any of the Lenders Bank may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable)request.
(d) The Lenders and the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Laclede Gas Co)
Initial Loans. The Commitment obligations of each Lender the Lenders to make its initial Loan is the Initial Loans are subject to the satisfaction of the following conditions that on or prior to the date of such Loanthe Borrowing of the Initial Loans:
(a) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(b) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(c) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, a favorable written legal opinions opinion of (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ Simpson Thacher & Priest Bartlett LLP, special New York counsel to for Holdings and the Borrower, and (B) Hunton & ▇▇Bo▇▇▇▇▇▇, counsel ▇▇ ▇▇▇▇ an▇ ▇▇▇▇▇▇nce reasonably satisfactory to the Borrower, Administrative Agent and (ii) King & Spalding, special New York local U.S. and/or foreign counsel reasonably satisfactory to the AgentAdministrative Agent as specified on Schedule 4.01(c), in each case (A) dated the date hereofClosing Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the AgentAdministrative Agent and covering such other matters relating to the Loan Documents and the Transaction as the Administrative Agent shall reasonably request, and each of Holdings and the Borrower hereby instructs its counsel to deliver such opinions.
(bd) The Administrative Agent shall have received in the case of each Person that is a Loan Party on the Closing Date each of the items referred to in clauses (i), (ii) and (iii) below:
(i) a copy of the certificate or articles of incorporation, memorandum and articles of association, partnership agreement or limited liability agreement, including all amendments thereto, of each such Loan Party, (A) in the Borrowercase of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the state jurisdiction of incorporation of the Borrowerits organization, and a certificate as to the good standing under the jurisdiction of its organization (to the Borrower extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State; State (or other similar official), (B) in the case of a partnership or limited liability company, certified by the manager, Secretary or Assistant Secretary or other appropriate officer of each such Loan Party or (C) in the case of a Cayman Islands exempted company, a copy of the memorandum and articles of association of such company stamped as registered and filed as of a recent date by the Registrar of Companies in the Cayman Islands;
(ii) a certificate of the manager, director, Secretary or an Assistant Secretary or similar officer of the Borrower, each such Loan Party dated the date of this Agreement Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the bylaws by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of the Borrower such Loan Party as in effect on such date the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, ,
(B) that attached thereto are is a true and complete copies copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution execution, delivery and delivery by performance of the Borrower Loan Documents to which such Person is a party and, in the case of this Agreementthe Borrower, the Loans to be made hereunder and the performance by the Borrower of all of its obligations borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, effect on the Closing Date,
(C) that the certificate or articles of incorporation referred to in clause (i) above has incorporation, memorandum and articles of association, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished disclosed pursuant to such clause (i) and above,
(D) as to the incumbency and specimen signature of each officer executing this Agreement and any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(E) as to the Borrowerabsence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Person, threatening the existence of such Loan Party; and
(iii) to the extent customarily provided in the applicable jurisdiction, a certificate of another officer of the Borrower officer, director or attorney-in-fact as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and .
(ive) a certificate of a Responsible Officer Each of the Borrower, dated Holdco Equity Financing and the date borrowing of the loans under the Senior Subordinated Bridge B Loan Agreement shall have been consummated as described in the recitals of this Agreement.
(f) The Administrative Agent shall have received all fees payable to it, stating that (A) no action, consent Deutsche Bank AG London or approval of, registration any other Lender on or filing with or other action by any Governmental Authority is or will be required in connection with prior to the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending orClosing Date and, to the knowledge extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of such personall reasonable out-of-pocket expenses (including reasonable fees, threatened appeal charges and disbursements of Davis Polk & Wardwell and U.S. and foreign local counsel) required to b▇ ▇▇▇▇▇▇▇▇ed ▇▇ ▇▇▇▇ by the Loan Parties hereunder or other proceeding seeking reconsideration under any Loan Document.
(g) Holdings or review thereofthe Borrower shall not have cancelled or rescinded this Agreement or the Commitments hereunder.
(h) The Offer shall have been accepted with respect to at least 75% of the registered ordinary shares of the Company outstanding at the end of the acceptance period under the Offer, excluding treasury shares.
(i) At the time of and immediately after giving effect to the Borrowing, (i) no Major Default shall have occurred and be continuing and (Bii) the representations and warranties set forth contained in Article III hereof are Section 3.01(a), (b) and (d) and 3.02 with respect to Holdings, Parent and/or Bidco and Section 3.10 shall be true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereofrespects.
(c) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent or any of the Lenders may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable).
(d) The Lenders and the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Senior Subordinated Bridge C Loan Agreement (Celanese Ag)
Initial Loans. The Commitment of each Lender to make its initial Loan is subject to the conditions that on or prior to the date of such Loan:
(a) The Agent shall have received favorable written legal opinions of (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrower, and (B) Hunton & ▇▇▇▇▇▇▇▇, counsel to the Borrower, and (ii) King & Spalding, special New York counsel to the Agent, in each case dated the date hereof, addressed to the Agent and the Lenders and in form and substance satisfactory to the Agent.
(b) The Agent shall have received (i) a copy of the certificate of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of incorporation of the Borrower, and a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors authorizing After the execution and delivery by the Borrower of this Agreement, the Loans Company shall enter into the loan transactions described on Exhibit C which is annexed hereto and made a part hereof (the "Initial "Loans"). To evidence its obligation to be made hereunder repay the Initial Loans, the Company, acting through the Manager, shall sign and deliver such promissory notes, mortgages, security agreements, pledge agreements, certificates, instruments, documents and other items (the performance by "Initial Loan Documents") with regard to the Borrower Company and its properties and assets as the Manager, in his sole discretion, deems appropriate. The Members acknowledge and agree that it is in the best interests of all of its obligations hereunderthe Company, and that it is necessary for the Company, to borrow the funds to be provided by the Initial Loans and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date Initial Loans will constitute substantial liabilities of the last amendment thereto shown on Company and could cause the certificate of good standing furnished pursuant Company to such clause (i) cease operations and (D) as to become insolvent if the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith Company does not fulfill its obligations under the Initial Loan Documents. The Members irrevocably authorize the Manager on behalf of the Borrower; (iii) a certificate of another officer Company to take all actions which the Manager, in his sole discretion, deems necessary or expedient to consummate the Initial Loans including, but not limited to, the execution of the Borrower Initial Loan Documents containing such terms and provisions as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the BorrowerManager, dated the date of this Agreementin his sole discretion, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties deems appropriate. The authorization set forth in Article III hereof are true the prior sentence shall be deemed to be coupled with an interest, shall be deemed to be for adequate consideration, and correct shall be irrevocable. No further authorization or direction from the Members shall be required for the Manager to be deemed to be fully authorized to act for, and to bind, the Company with regard to the Initial Loans and the Initial Loan Documents. The Manager is authorized to consummate the transactions involving the Initial-Loans in such order and at times as the Manager, in his sole discretion, determines; PROVIDED, HOWEVER, that the Manager in his sole discretion may elect to not consummate all material respects on and Initial Loans and/or to procure such substitute loans for any Initial Loans not consummated all as the Manager, in his sole discretion, deems appropriate; PROVIDED, FURTHER, in no event shall the aggregate principal amount of the date hereof, Initial Loans and (C) no Event loans procured in substitution therefor exceed the principal amount of Default or Default has occurred and is continuing on $3,000,000.00 at the date hereof.
(c) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent or any time of consummation of the Lenders may have reasonably requested, in form satisfactory last of such loans to be consummated without the Agent or Lender (if applicable).
(d) The Lenders and the Agent shall have received payment express written prior consent of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this AgreementMembers.
Appears in 1 contract
Sources: Operating Agreement (Kti Inc)
Initial Loans. The Commitment of each Lender Notwithstanding any provision contained in ------------- this Agreement to the contrary, no Bank shall have any obligation to make its the initial Loan is subject to Loan(s) under this Agreement unless the conditions that on or prior to the date of such LoanAdministrative Agent shall have first received:
(a) The Agent shall have received favorable written legal opinions this Agreement and the Notes, each executed by a duly authorized officer of (i)Borrower;
(Ab) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to a copy of resolutions of the Board of Directors of Borrower, duly adopted, which authorize the execution, delivery and performance of this Agreement, the Notes and the other Transaction Documents, certified by the Secretary of Borrower;
(Bc) Hunton & ▇▇▇▇▇▇▇▇, counsel to a copy of the Articles of Incorporation of Borrower, including any amendments thereto, certified by the Secretary of Borrower;
(d) a copy of the By-Laws of Borrower, including any amendments thereto, certified by the Secretary of Borrower;
(e) an incumbency certificate, executed by the Secretary of Borrower, which shall identify by name and title and bear the signatures of all of the officers of Borrower executing any of the Transaction Documents;
(iif) King & Spalding, special New York counsel to a certificate of corporate good standing of Borrower issued by the Agent, in each case dated Secretary of State of the date hereof, addressed to State of Missouri;
(g) an opinion of the Agent and the Lenders and General Counsel of Borrower in form and substance satisfactory to the Agent.Administrative Agent and each Bank;
(bh) The Agent shall have received the Notice of Borrowing required by Section 2.02;
(i) a copy evidence satisfactory to the Administrative Agent that that certain Loan Agreement dated as of the certificate of incorporationNovember 30, including all amendments thereto2000, of the by and among Borrower, certified the banks party thereto and U.S. Bank National Association, as agent for such banks, as amended by that certain First Amendment to Loan Agreement dated as of a recent date by the Secretary of State of the state of incorporation of the BorrowerOctober 1, and a certificate 2001 (as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors authorizing the execution and delivery by the Borrower of this Agreementso amended, the Loans to be made hereunder "Existing Loan Agreement") has been terminated and the performance by the any existing indebtedness of Borrower of all of its obligations hereunder, and that such resolutions have not thereunder has been modified, rescinded or amended and are paid in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the Borrower, dated the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required paid in connection full with the execution, delivery and performance by proceeds of the Borrower of initial Loan(s) under this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.);
(cj) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent or any of the Lenders may have reasonably requested, a letter (which must be in form and substance satisfactory to the Agent or Lender (if applicable).and each Bank) executed by Borrower with respect to the payment of certain upfront fees to the Banks; and
(dk) The Lenders such other agreements, documents, instruments and certificates as the Administrative Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this Agreementany Bank may reasonably request.
Appears in 1 contract
Sources: Loan Agreement (Laclede Group Inc)
Initial Loans. The Commitment of each Lender to make its initial Loan on or after the date hereof is subject to the conditions that on or prior to the date of such Loan:
(a) The Agent shall have received favorable written legal opinions of (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the Borrower, and (B) Hunton & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, and (ii) King & SpaldingSpalding LLP, special New York counsel to the Agent, in each case dated the date hereof, addressed to the Agent and the Lenders and in form and substance satisfactory to the Agent.
(b) The Agent shall have received (i) a copy of the certificate of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of incorporation of the BorrowerTexas, and a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary or analogous officer of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws by-laws of the Borrower as in effect on such date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board board of Directors directors (or any duly authorized committee thereof) of the Borrower authorizing the execution and delivery by the Borrower of this Agreement, the Loans to be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary or analogous officer executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the Borrower, dated the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.
(c) The Agent shall have received documentation and information required by regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including without limitation the USA Patriot Act.
(d) The Agent shall have received evidence satisfactory to it of the execution and delivery of the TXU Corp. Agreement and the TXU Energy Agreement.
(e) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent Agent, or any of the Lenders may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable)and the requesting Lender.
(df) The Lenders Lenders, the Agent and the Agent Sole Lead Arranger named in the Letter Agreements shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans Loan pursuant to the terms of this AgreementAgreement or the Letter Agreements.
Appears in 1 contract
Sources: Credit Agreement (Txu Corp /Tx/)
Initial Loans. The Commitment of each Lender to make its initial Loan is subject As conditions precedent to the conditions that on or prior to making of the date of such Loan:
(a) The Agent initial Loans under this Agreement, the Bank shall have received favorable written legal opinions of (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLPbe furnished, special New York counsel to the Borrower, and (B) Hunton & ▇▇▇▇▇▇▇▇, counsel to the Borrower, and (ii) King & Spalding, special New York counsel to the Agent, in each case dated the date hereof, addressed to the Agent and the Lenders and in form and substance satisfactory to the Agent.Bank:
(a) a certified copy of the resolutions of the Board of Directors of the Borrower authorizing the execution and delivery of, and performance under, this Agreement, the Note, the respective Security Documents and the statements, schedules, reports, certifications and all other documents related to, or required by, any of the foregoing ("RELATED DOCUMENTS");
(b) The Agent shall have received evidence of the authority of each person who has signed, or will sign, on behalf of the Borrower, this Agreement, the Note, the Security Documents and the Related Documents, and who will otherwise act as the representative of the Borrower in the operation of this Agreement;
(c) the authenticated specimen signature of each person referred to in subparagraph (b) of this Section 16.1;
(d) the executed Note;
(e) the executed Security Documents;
(f) the executed Intercreditor Agreement;
(g) the facility fees required pursuant to Section 2.15 hereof;
(h) the evidence of insurance required pursuant to Section 12.5 hereof;
(i) opinion of the Borrower's legal counsel relating to this loan transaction acceptable to the Bank and its counsel;
(j) the closing of the transactions contemplated by the Distribution Agreements;
(k) a copy of the certificate executed Distribution Agreements and copies of incorporation, including all amendments thereto, of the Borrowerdocuments and agreements executed in connection therewith, all certified as by a Responsible Officer of Borrower to be true and correct;
(l) a recent date by the Secretary of State copy of the state of incorporation of the Borrowerexecuted Bank One Credit Agreement, and any amendments thereto and copies of all the documents and agreements executed in connection therewith, all certified by a certificate as to the good standing Responsible Officer of the Borrower as of a recent date from such Secretary of State; to be true and correct;
(iim) a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the bylaws duly authorized officer of the Borrower as in effect on such date and at all times since a date prior to the date effect set forth in Section 16.2(a) and 16.2(b) hereof;
(n) all accrued fees and expenses due and payable on the Closing Date, and, to the extent invoiced, reimbursement or other payment of out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Credit Document;
(o) an executed original of a consent and waiver from Bank One pursuant to which Bank One shall waive any "Default" arising under Sections 12(b) and 12(d) of the resolutions described in clause (B) below, (B) that attached thereto are true Bank One Credit Agreement and complete copies of resolutions duly adopted by the Board of Directors authorizing shall consent to the execution and delivery by the Borrower of this Agreement, which consent and waiver shall be in form and substance satisfactory to the Loans to Bank and shall be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect;
(p) all corporate and other proceedings, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency all documents, instruments and specimen signature of each officer executing this Agreement other legal, diligence and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the Borrower, dated the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required financial matters in connection with the execution, delivery and performance transactions contemplated by the Borrower of this AgreementCredit Documents, except those as have been duly obtained which shall be reasonably satisfactory in form and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, substance to the knowledge Bank and its counsel;
(q) certified copies of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, the articles of incorporation and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and by-laws as well as a good standing certificate as of a recent date for the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.Borrower; and
(cr) The Agent In addition to the foregoing requirements, all legal details and proceedings in connection with the transactions contemplated by this Agreement and the Distribution Agreements shall be satisfactory to the Bank and its counsel and the Bank shall have received all such counterpart originals or certified or other approvals, opinions, certificates, instruments copies of such documents and documents as the Agent or any of the Lenders may have reasonably requestedproceedings in connection with such transactions, in form and substance satisfactory to the Agent or Lender (if applicable)Bank and its counsel, as the Bank may from time to time reasonably request.
(d) The Lenders and the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this Agreement.
Appears in 1 contract
Initial Loans. The Commitment obligation of each Lender the Lenders to make its the initial Loan ------------- Loans, or, if earlier, to cause the initial issuance of Letters of Credit hereunder or the execution of a Foreign Exchange Contract hereunder (the first one to occur being hereinafter referred to as the "Initial Credit Event") is subject to the conditions that on satisfaction of, or waiver of, immediately prior to or concurrently with the date making of such LoanLoans or such issuance, the following conditions precedent:
(a) The Not less than $60,000,000 in gross proceeds shall be generated by Borrower's issuance of its Subordinated Notes and the Agent shall have received favorable written legal opinions copies of (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, special New York counsel to the BorrowerSubordinated Note Indenture, and (B) Hunton & ▇▇▇▇▇▇▇▇any and all agreements, counsel to the Borrower, registration statements and (ii) King & Spalding, special New York counsel to the Agent, opinions executed and delivered or filed in each case dated the date hereof, addressed to the Agent and the Lenders and in form and substance satisfactory to the Agentconnection therewith.
(b) The Agent Borrower shall have received (i) a copy of the certificate of incorporation, including all amendments thereto, of the Borrower, certified as of a recent date by the Secretary of State of the state of incorporation of the Borrower, and a certificate as demonstrated to the good standing satisfaction of the Agent that Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the date of this Agreement has in place accounts receivable and certifying (A) that attached thereto is a true inventory financing facilities for its Foreign Subsidiaries and complete copy of the bylaws of the Borrower as foreign factory support in effect on such date amounts and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto are true and complete copies of resolutions duly adopted by the Board of Directors authorizing the execution and delivery by the Borrower of this Agreement, the Loans to be made hereunder and the performance by the Borrower of all of its obligations hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant subject to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing this Agreement and any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) a certificate of a Responsible Officer of the Borrower, dated the date of this Agreement, stating that (A) no action, consent or approval of, registration or filing with or other action by any Governmental Authority is or will be required in connection with the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and terms as are (1) acceptable to Agent in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending or, to the knowledge of such person, threatened appeal or other proceeding seeking reconsideration or review thereof, and (B) the representations and warranties set forth in Article III hereof are true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereof.its sole discretion;
(c) The Agent Initial Credit Event shall have received such other approvalsoccurred on or before June 30, opinions, certificates, instruments and documents as the Agent or any of the Lenders may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable)1997.
(d) The Lenders and the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due (i) on or prior to the Closing Date each of the documents and certificates set forth in Section I of the Closing Documents List and (ii) on or prior to the Initial Credit Event each of the documents and certificates set forth in Section II of the Closing Documents List.
(e) The Lenders shall have received on the Closing Date the opinions of counsel to the Borrower reasonably satisfactory to the Agent, dated the Closing Date in substantially the form of Exhibit I.
(f) The Agent and the Lenders shall have received payment in full of the Fees (as applicable), the Expenses and all other fees and expenses (or an irrevocable authorization to pay such fees out of the proceeds of the Loans) referred to in Article 8 hereof which are payable to them on or --------- before the date of the initial Loans pursuant Initial Credit Event.
(g) The Borrower shall have executed and delivered to the terms of this AgreementAgent all documents which the Agent determines are reasonably necessary to consummate the lending arrangements contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Converse Inc)
Initial Loans. The Commitment obligations of each Lender the Lenders to make its initial Loan is the Initial Loans are subject to the satisfaction of the following conditions that on or prior to the date of such Loanthe Borrowing of the Initial Loans:
(a) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(b) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(c) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent and the Lenders, a favorable written legal opinions opinion of (i)
(A) ▇▇▇▇▇▇ ▇▇▇▇ Simpson Thacher & Priest Bartlett LLP, special New York counsel to for Holdings and the Borrower, and (B) Hunton & ▇▇Bo▇▇▇▇▇▇, counsel ▇▇ ▇▇▇▇ an▇ ▇▇▇▇▇▇nce reasonably satisfactory to the Borrower, Administrative Agent and (ii) King & Spalding, special New York local U.S. and/or foreign counsel reasonably satisfactory to the AgentAdministrative Agent as specified on Schedule 4.01(c), in each case (A) dated the date hereofClosing Date, (B) addressed to the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the AgentAdministrative Agent and covering such other matters relating to the Loan Documents and the Transaction as the Administrative Agent shall reasonably request, and each of Holdings and the Borrower hereby instructs its counsel to deliver such opinions.
(bd) The Administrative Agent shall have received in the case of each Person that is a Loan Party on the Closing Date each of the items referred to in clauses (i), (ii) and (iii) below:
(i) a copy of the certificate or articles of incorporation, memorandum and articles of association, partnership agreement or limited liability agreement, including all amendments thereto, of each such Loan Party, (A) in the Borrowercase of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the state jurisdiction of incorporation of the Borrowerits organization, and a certificate as to the good standing under the jurisdiction of its organization (to the Borrower extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State; State (or other similar official), (B) in the case of a partnership or limited liability company, certified by the manager, Secretary or Assistant Secretary or other appropriate officer of each such Loan Party or (C) in the case of a Cayman Islands exempted company, a copy of the memorandum and articles of association of such company stamped as registered and filed as of a recent date by the Registrar of Companies in the Cayman Islands;
(ii) a certificate of the manager, director, Secretary or an Assistant Secretary or similar officer of the Borrower, each such Loan Party dated the date of this Agreement Closing Date and certifying certifying:
(A) that attached thereto is a true and complete copy of the bylaws by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of the Borrower such Loan Party as in effect on such date the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, ,
(B) that attached thereto are is a true and complete copies copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution execution, delivery and delivery by performance of the Borrower Loan Documents to which such Person is a party and, in the case of this Agreementthe Borrower, the Loans to be made hereunder and the performance by the Borrower of all of its obligations borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, effect on the Closing Date,
(C) that the certificate or articles of incorporation referred to in clause (i) above has incorporation, memorandum and articles of association, partnership agreement or limited liability agreement of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished disclosed pursuant to such clause (i) and above,
(D) as to the incumbency and specimen signature of each officer executing this Agreement and any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party, and
(E) as to the Borrowerabsence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such Person, threatening the existence of such Loan Party; and
(iii) to the extent customarily provided in the applicable jurisdiction, a certificate of another officer of the Borrower officer, director or attorney-in-fact as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and .
(ive) a certificate of a Responsible Officer Each of the Borrower, dated Holdco Equity Financing and the date borrowing of the loans under the Senior Subordinated Bridge C Loan Agreement shall have been consummated as described in the recitals of this Agreement.
(f) The Administrative Agent shall have received all fees payable to it, stating that (A) no action, consent DBNY or approval of, registration any other Lender on or filing with or other action by any Governmental Authority is or will be required in connection with prior to the execution, delivery and performance by the Borrower of this Agreement, except those as have been duly obtained and as are (1) in full force and effect, (2) sufficient for their purpose and (3) not subject to any pending orClosing Date and, to the knowledge extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of such personall reasonable out-of-pocket expenses (including reasonable fees, threatened appeal charges and disbursements of Davis Polk & Wardwell and U.S. and foreign local counsel) required to b▇ ▇▇▇▇▇▇▇▇ed ▇▇ ▇▇▇▇ by the Loan Parties hereunder or other proceeding seeking reconsideration under any Loan Document.
(g) Holdings or review thereofthe Borrower shall not have cancelled or rescinded this Agreement or the Commitments hereunder.
(h) The Offer shall have been accepted with respect to at least 75% of the registered ordinary shares of the Company outstanding at the end of the acceptance period under the Offer, excluding treasury shares.
(i) At the time of and immediately after giving effect to the Borrowing, (i) no Major Default shall have occurred and be continuing and (Bii) the representations and warranties set forth contained in Article III hereof are Section 3.01(a), (b) and (d) and 3.02 80 with respect to Holdings, Parent and/or Bidco and Section 3.10 shall be true and correct in all material respects on and as of the date hereof, and (C) no Event of Default or Default has occurred and is continuing on the date hereofrespects.
(c) The Agent shall have received such other approvals, opinions, certificates, instruments and documents as the Agent or any of the Lenders may have reasonably requested, in form satisfactory to the Agent or Lender (if applicable).
(d) The Lenders and the Agent shall have received payment of all fees and reimbursements of all expenses for which invoices have been presented as and when due on or prior to the date of the initial Loans pursuant to the terms of this Agreement.
Appears in 1 contract
Sources: Senior Subordinated Bridge B Loan Agreement (Celanese Ag)