Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d); (ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released; (iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent; (iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent; (v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated; (vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents; (vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect; (viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid; (ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and (x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 5 contracts
Sources: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. 364-DAY CREDIT AGREEMENT As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 3 contracts
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.cancel its request to designate such Subsidiary as a “Designated Borrower” hereunder. 364-DAY CREDIT AGREEMENT
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Revolving Loan Borrowing;
(ii) Original certificates of insurance, loss payable and mortgagee endorsements or certificates naming the Administrative Agent as lenders’ mortgagee, loss payee, mortgagee payee and additional insured, as required by Section 5.01(d)) of this Agreement;
(iiiii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence Evidence that all existing Liens on any assets Indebtedness of the CBII Entities other than Permitted Liens have Loan Parties has been or concurrently with the Effective Closing Date are is being released;
repaid in full (iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agentother than Indebtedness described on Schedule 5.02(a));
(iv) There shall not have occurred any event or circumstance that constitutes a Material Adverse Effect;
(v) No material disruption of or a material adverse change in conditions in the financial, banking or capital markets shall have occurred since December 11, 2002 which ▇▇▇▇▇ Fargo, in its sole discretion, deems material in connection with its ability to syndicate the Commitments and the Loans;
(vi) There shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could constitute a Material Adverse Effect;
(vii) Copies of all Rate Contracts to which the Borrower or any of its Subsidiaries is a party;
(viii) A certificate of the President, Chief Financial Officer, Chief Accounting Officer president or Treasurer chief financial officer of CBIIthe Borrower, addressed to the Administrative Agent and dated the Effective Closing Date, certifying that each of that:
(A) The representations and warranties set forth in Article IV and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated therebysuch date (except for such representations and warranties made as of a specified date, will which shall be Solventtrue and correct in all material respects as of such date); and
(B) No Default has occurred and is continuing as of such date;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viiiix) All fees and reasonable expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Administrative Agent’s Fee Letter) shall have been paid, to the extent invoiced prior to the Closing Date;
(ixx) Payment of all All reasonable fees and expenses of counsel to the Administrative Agent through the Effective Closing Date shall have been paid, to the extent invoiced prior to the Borrower or CBII has received an invoice thereforClosing Date; and
(xxi) Such Each Loan Party shall have obtained all Governmental Authorizations and all consents of other evidence as Persons, in each case that are necessary to have been obtained prior to the Administrative Agent or any Lender may reasonably request to establish (A) Closing Date in connection with this Agreement the accuracy transactions herein and completeness the continued operation of the representations and warranties business conducted by the Loan Parties in all material respects (unless any substantially the same manner as conducted prior to the Closing Date. Each such representation Governmental Authorization or warranty is qualified as to materiality, in which case such representation and warranty consent shall be true in full force and correct effect, except in all respects) both immediately before and after giving effect a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the Transaction and (B) aggregate, could not reasonably be expected to have a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on this Agreement, the compliance transactions contemplated by the Credit Documents or the financing thereof. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the terms and conditions contained in this Agreement foregoing shall be pending, and the other Credit Documentstime for any applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Wild Oats Markets Inc)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.cancel its request to designate such Subsidiary as a “Designated Borrower” hereunder. AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Appears in 2 contracts
Sources: Credit Agreement (Stanley Black & Decker, Inc.), Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.), Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence A duly completed Notice of insurance endorsements or certificates naming Loan Borrowing for Revolving Loans, to the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d)extent any Revolving Loans are requested to be made to the Borrowers on the Closing Date;
(ii) The pay-off letter in respect A duly completed Notice of Loan Borrowing for the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedTerm Loans;
(iii) A hierarchy report for funds flow statement detailing the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure disbursement of the CBII Entities as previously disclosed Borrowings to occur on the Administrative Agent with any changes thereto satisfactory Closing Date, in form and substance acceptable to the Administrative Agent;
(iv) A certificate Certificates of insurance and endorsements (including a lender’s loss payable endorsement) naming the PresidentCollateral Agent as mortgagee and loss payee and the Collateral Agent, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each Lenders as additional insureds in accordance with Section 5.01(d) of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventthis Agreement;
(v) The Lead Arranger shall be satisfied that all Existing Indebtednessabsence of any material adverse change or material disruption in the loan syndication, other than financial, banking or capital markets that, in the Surviving Indebtednessjudgment of the Administrative Agent, has been prepaidmaterially impaired, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminatedcould reasonably be expected to materially impair, the syndication of any component of the credit facilities provided hereunder;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective DateSince December 31, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks2008, and the United States Copyright Office relative to copyrights on the Effective Date no event or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) circumstance shall have been obtained and shall remain occurred that has resulted or could result in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on change in the ability business, operations, condition (financial or otherwise), assets, liabilities (whether actual or contingent) or prospects of the Borrower and the Guarantors to perform their obligations under the Credit DocumentsLoan Parties taken as a whole;
(vii) All Pre-Commitment Information There shall be truenot exist any pending or threatened litigation, correct and complete in all material respects. No additional information bankruptcy or other proceeding that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectEffect on the Loan Parties, taken as a whole;
(viii) All fees and expenses payable to There shall not exist any order, decree, judgment, ruling or injunction which restrains any part of the Administrative Agent and consummation of the Lenders on transactions contemplated under this Agreement or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paidother Credit Documents;
(ix) Payment The Administrative Agent shall not have become aware of any material information or other matter that is inconsistent in a material and adverse manner with any previous due diligence, information or matter (including any financial information and projections previously delivered to the Administrative Agent;
(x) A certificate of a Senior Finance Officer of Parent certifying that (A) the representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects as of such date (except for such representations and warranties made as of a specified date, which shall be true as of such date); (B) no Default shall have occurred and be continuing; and (C) each Loan Party has obtained all Governmental Authorizations and material third party consents, in each case that are necessary to have been obtained prior to the Closing Date and which are in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent could not have a Material Adverse Effect;
(xi) The Borrowers and the Guarantors shall have provided to the Lenders such documentation and other information that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act;
(xii) All fees and expenses due to the Lenders, WFS, the Administrative Agent and counsel to WFS and the Administrative Agent shall have been paid (including fees and expenses of counsel to the Administrative Agent ▇▇▇▇▇ Fargo Parties invoiced through the Effective Closing Date and fees payable to ▇▇▇▇▇ Fargo Parties pursuant to the extent the Borrower or CBII has received an invoice thereforFee Letter); and
(xxiii) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy of completion of such investigations, reviews and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect audits with respect to the Transaction Borrowers and (B) Guarantors and the compliance with the terms and conditions contained in transactions contemplated by this Agreement and the other Credit DocumentsDocuments as may be reasonably requested by the Administrative Agent or any Lender. None.
(i) SEE ATTACHED LEASE SCHEDULE.
(ii) NONE. SCHEDULE 4.01(h) LEASED REAL PROPERTY ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 112 Conway, AR Dental Office Trinity Development Company 01/31/12 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AR Dental Office N & W Properties, LLC 02/28/15 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Cornerstone Center II, LLC 01/31/20 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ Dental Office Mabelvale Plaza, LLC 02/28/11 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Road, Suite B1 Little Rock, AR Dental Office Flake & ▇▇▇▇▇▇ Management 06/30/10 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ Admin Office Danco Construction Company 05/31/10 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ Dental Office Makan Hospiliy, LLC 07/31/13 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office ▇▇▇▇▇▇▇▇ Properties, LLC 05/31/11 ▇▇▇▇ ▇. ▇▇▇ Fine Boulevard ▇▇▇▇▇▇, OK Dental Office ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 03/31/10 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Guaranty Loan & Real Estate Co. 03/31/11 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇ ▇▇▇▇▇▇, ▇▇ Dental Office Simon Property Group (Texas), LP 01/31/12 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Colonnade Shopping Center Ltd. 11/30/10 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., Suite 100 Austin, TX Dental Office Corners Shopping Center LTD 12/31/14 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Regency Centers, LP 11/30/13 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Tech Ridge Phase I, LP 03/31/19 ▇▇▇▇ ▇. ▇▇ ▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇ Dental Office TPRF/Stassney, L.P. 04/30/10 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office WTV, Ltd. 03/31/12 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Boulevard, Suite C105 Cedar Park, TX Dental Office ASC Management, Inc. 08/31/17 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, Suite 170 Killeen, TX Dental Office HEB Grocery Company, LP 06/30/16 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Drive, Suite 105 Kyle, TX Dental Office DDR ▇▇ ▇▇▇▇, LP 11/30/19 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ Dental Office Sage Socrates, Ltd. 11/30/12 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ Dental Office HEB Grocery Company, LP 06/30/16 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ Dental Office CBL RM-Waco, LLC 06/30/14 ▇▇▇▇ ▇. ▇▇▇▇▇▇ Road, Suite 105 Avondale, AZ Dental Office ▇▇▇▇▇ Coldwater, LLC 11/30/15 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇ Dental Office Pacific Capital Management 07/31/15 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ Dental Office ▇▇▇▇▇-▇▇▇▇▇ Land Management Company, LLC 12/31/15 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Green Valley, AZ Dental Office Shodo Properties, LLC 11/30/11 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ & ▇▇▇ ▇▇▇▇, ▇▇ Dental Office CTW-Greenfield Gateway, LLC 12/31/15 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ Dental Office DTD-DevCo 8W, LLC 02/28/17 ▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Oak Realty Partners, Inc. 06/30/16 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 110 Phoenix, AZ Dental Office ▇▇▇▇▇▇ 2423 Company 12/31/14 ▇▇▇▇▇ ▇. ▇▇▇▇ Road, Suite 5 Surprise, AZ Dental Office Surprise Village E and F, LLC 11/30/16 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mall, Space FC-17 Canton, OH Dental Office Westfield ▇▇▇▇▇▇ Village 01/31/16 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Two Elyria Company, LLC 01/31/19 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Lorain, OH Dental Office Lorain Professionals, LLC 04/30/16 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Lorain, OH Storage Lorain Professionals, LLC 04/30/16 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Hach Development Company 12/31/15 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Admin Office Royal Group LLC 04/01/12 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Royal Group LLC 12/31/13 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Suite D Sandusky, OH Dental Office ▇▇▇▇ ▇▇▇▇▇▇ Professional Center, Ltd. 06/30/10 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office BLC-II, LLC 05/31/16 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇ Dental Office Yung ▇▇▇▇ ▇▇▇, Successor Trustee of the ▇▇▇▇▇ ▇. ▇▇▇ and Yung ▇▇▇▇ ▇▇▇ Living Trusts 01/31/16 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Folcom, LLC 12/31/10 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ Dental Office 1001 ▇. ▇▇▇▇▇, LLC 09/30/11 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Red Rock Springs, LLC 05/31/14 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Growth Financial, LLC 07/16/10 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental/Admin Frost Family Partnership - Cherry Terrace, LLP 06/30/12 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇ Dental Office Halcyon House MTM ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Suite 5 Fort ▇▇▇▇▇▇▇, CO Dental Office ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 01/31/12 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ A, LLC 01/31/12 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇ Dental Office Colfax ▇▇▇▇▇▇▇▇▇, LLC 04/30/16 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ Dental Office Triumph ▇▇▇▇▇ Vista, LLC 01/31/17 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Denture Centre II 02/28/13 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ Dental Office Lofino Properties, LLC 04/30/12 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office EIG Pinewood Plaza, LLC 12/31/11 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office ▇.▇. ▇▇▇▇ Investments 06/30/13 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇ Admin Office Blue Chip Brothers and Harris J. Harbor, LLC 02/29/12 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, OH Dental Office Columbia Building Co. 02/28/11 ▇▇▇ ▇. ▇▇▇ Street, Suite A-O1 Piqua, OH Dental Office The Mid-America Management Corp. 09/30/11 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ Dental Office ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, LLC 02/28/18 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Salem Square Improvements, LLC 10/31/12 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Hillcrest Village Partners, Ltd. 11/30/12 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office First Continental Enterprises, Inc. 07/22/14 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Mockingbird/Central Plaza Ltd. 12/31/14 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Westdale ▇▇▇▇▇▇▇▇▇, Ltd. 06/30/11 ▇▇▇▇ ▇. ▇-▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office FMP ▇▇▇▇▇▇, ▇▇ 01/31/15 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Kimco Frisco, L.P. 08/31/19 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office DeLorden, Ltd. 10/31/13 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ Dental Office 1171 & Old Orchard Joint Venture 10/31/13 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇ Dental Office Little Elm Towne Crossing, Ltd. 03/31/19 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, TX Dental Office ▇▇▇▇▇▇▇▇ Towne Crossing, L.P. 06/30/17 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office F.D. Enterprises, Ltd. 01/31/11 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office 3516 ▇▇▇▇▇▇▇, ▇▇ 07/31/12 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office 3516 ▇▇▇▇▇▇▇, ▇▇ 07/31/12 ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office Parkway Commons, LP 09/30/12 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Suite 108 Richardson, TX Dental Office 1750 ▇▇▇▇ Management, LLC & Gabriella Bat- Aviv 06/30/15 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ Dental Office ▇▇▇▇▇/Inland American Lewisville TC, LP 05/31/20 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Suite 110-South Abilene, TX Dental Office ▇▇▇▇▇▇ Plaza Dr. Ltd. 11/30/13 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ NE, Suite B Albuquerque, NM Dental Office ▇▇▇▇▇ Dental Medical, LLC 12/31/11 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Plaza Shopping Ctr., Ltd. 04/30/14 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Suite 188 Carrollton, TX Dental Office Trinity/▇▇▇▇▇▇ ▇▇, Ltd. 04/30/12 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office W.P. Corinth Holdings LLC 07/31/14 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇, ▇▇ Dental Office Darakev Trust 09/30/10 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ Dental Office Euless Capital, LP 12/31/11 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, DDS 12/31/16 ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office Oakwind, Ltd. 02/28/11 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office Simon Property Group (Texas), LP MTM ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office Inland Western Lake Worth Towne Crossing, Ltd. 10/31/15 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ Dental Office Main Street Santa ▇▇▇, LLC MTM ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Suite 100 North Richland Hills, TX Dental Office Inland Western North Richland Hills ▇▇▇▇▇, ▇▇ 11/30/14 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ Dental Office Hilltop Square S/C Partners, Ltd. 11/30/13 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇ Dental Office S&S Shopping Centers, Ltd. 11/30/14 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇ Dental Office La Compania Management Account 05/31/11 ▇▇▇ ▇. ▇▇▇▇▇▇▇ Street, Suite F Richardson, TX Storage MRI Sherman Plaza Investment Fund, LP MTM
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate of such Lender to act as the Lender in respect of such Designated Borrower (and such Lender shall, to the extent of Advances made to such Designated Borrower, be deemed for all purposes hereof to have pro tanto assigned such Advances and participations to such Affiliate in compliance with the provisions of Section 8.07). As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated 364-DAY CREDIT AGREEMENT Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule III, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate of such Lender to act as the Lender in respect of such Designated Borrower (and such Lender shall, to the extent of Advances made to such Designated Borrower, be deemed for all purposes hereof to have pro tanto assigned such Advances and participations to such Affiliate in compliance with the provisions of Section 8.07). As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule III, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Other Items. (1) A duly completed and timely delivered Acquisition Request for the Tract 2 Advance, duly executed by Lessee;
(2) A letter updating the Expiration Date Appraisal or other evidence satisfactory to Lessor as to appraised value of the Tract 2 Land as of the Tract 2 Acquisition Date;
(3) Bills of sale for all Related Goods to be acquired for the Acquisition Advance to be made on the Tract 2 Acquisition Date, each reflecting Lessor as the purchaser of such Related Goods;
(4) An as-built survey of the Property (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payeeprepared by a registered surveyor reasonably satisfactory to Agent, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter certified as correct and as (A) having been made in respect of accordance with the Indebtedness under the Existing Credit Agreement, executed most recent standards for "Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys," jointly established and delivered adopted by the parties theretoALTA and ACSM, and evidence that all existing Liens on any assets (B) meeting the accuracy requirements of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
a Class A survey (as defined therein) and including items 1-5, 7-13 and 15 of Table 3 thereof, and (iii) A hierarchy report for the CBII Entitiesdisclosing, setting forth the relationship among such Personsother things, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing location of the UCC financing statements to be filed on perimeter of the Effective DateProperty by courses and distances, (B) all easements and rights-of-way, whether above or underground, (C) the filing lines of the Intellectual street abutting the Property Security Agreements to be filed in and the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarkswidth thereof, (D) encroachments, if any, and the United States Copyright Office relative to copyrights on extent thereof in feet and inches upon the Effective Date or Property, and (CE) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained all boundary and shall remain in effect lot lines, and all applicable waiting periods shall have expired without any action being taken other matters that would be disclosed by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability inspection of the Borrower Property and the Guarantors to perform their obligations under the Credit Documentspublic records;
(vii5) All Pre-Commitment Information shall be trueIf requested by Lessor, correct Agent or any Participant, a list of and complete in copies of all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectConstruction Agreements;
(viii6) Each of the Environmental Reports to the extent not previously delivered;
(7) Certificates of insurance evidencing the insurance Lessee is required to maintain pursuant to Paragraph 3.03 of the Lease Agreement;
(8) The Acquisition Agreement for the Tract 2 Land and an assignment of such Acquisition Agreement by Lessee to Lessor;
(9) All fees and expenses payable to the Administrative Agent and the Lenders Lessor Parties on or prior to the Effective Acquisition Date for the Tract 2 Land (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paidAgent's Fees);
(ix10) Payment of all All fees and expenses of counsel to the Administrative Agent Lessor's and Agent's counsels through the Effective Acquisition Date to for the extent the Borrower or CBII has received an invoice thereforTract 2 Land; and
(x11) Such other evidence as the Administrative Agent Agent, Lessor or any Lender Participant may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Operative Documents.
Appears in 1 contract
Other Items. (i1) Evidence A duly completed and timely delivered Notice of insurance endorsements or certificates naming Borrowing for the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d)applicable Borrowing;
(ii2) The pay-off letter in respect Copies of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedprincipal Symbios Acquisition Documents;
(iii3) A hierarchy report for Copies of all filings made by LSI with the CBII EntitiesSEC in connection with the Symbios Acquisition, setting forth together with all exhibits and all amendments thereto through the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentInitial Closing Date;
(iv4) A certificate from each of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBIILSI and a Representative Director of LLJS, respectively, addressed to the Administrative Agent and dated the Effective Initial Closing Date, certifying that each of that:
(a) The representations and warranties set forth in Paragraph 4.01 and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities such date (except for (A) the filing such representations and warranties made as of the UCC financing statements to a specified date, which shall be filed on the Effective Date, (B) the filing true as of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;such date); and
(viib) All Pre-Commitment Information shall be true, correct No Default has occurred and complete in all material respects. No additional information that pertains to the period prior to the execution is continuing as of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;such date.
(viii5) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Initial Closing Date (including all fees payable to Rabobank Agent pursuant to the Agent's Fee Letter) shall have been paid);
(ix6) Payment of all All fees and expenses of counsel to the Administrative Agent Agent's counsels through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; andInitial Closing Date;
(x7) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents;
(8) Copies of the irrevocable notices delivered by LLJS pursuant to the Outstanding Japanese Loan Facility of its intention to cancel all commitments and prepay all amounts outstanding thereunder by no later than August 31, 1998;
(9) Copies of the form of LSI's 5 1/2% Subordinated Notes due 2001 and the indenture relating thereto;
(10) Such documentation as ABN AMRO may require in order for LLJS to open an account with its Tokyo branch, including, without limitation, an Agreement on Bank Transactions and an Agreement on Overdraft in Current Account.
Appears in 1 contract
Sources: Credit Agreement (Lsi Logic Corp)
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Loan Borrowing;
(ii) The capital and ownership structure (including operating agreements, company agreements, articles of incorporation and by-laws), stockholders agreements and management of the Loan Parties shall be reasonably satisfactory to Administrative Agent and Lenders;
(iii) Certificates of insurance, loss payable endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee payee and the Administrative Agent and the Lenders as additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed this Agreement and delivered by the parties thereto, an insurance analysis and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory review from a consultant acceptable to the Administrative Agent;
(iv) Other than the PCL Litigation, there shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties, any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Loan Documents or the ability of the Lenders to exercise their rights thereunder;
(v) There shall not exist (A) any order, decree, judgment, ruling or injunction which restrains any part of the consummation of the transactions contemplated under this Agreement in the manner contemplated by the Loan Documents (or any documents executed in connection therewith); or (B) any litigation pending or threatened against any Loan Party as of the Fifth Restatement Effective Date which could have a Material Adverse Effect;
(vi) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer treasurer of CBIIthe Borrowers, addressed to the Administrative Agent and dated the Fifth Restatement Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;that:
(vA) The Lead Arranger representations and warranties set forth in Article IV and in the other Loan Documents are true and correct in all material respects as of such date (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be satisfied true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all Existing Indebtedness, other than the Surviving Indebtedness, respects) as of such date);
(B) No Default has been prepaid, redeemed or defeased in full or otherwise satisfied occurred and extinguished is continuing as of such date;
(C) Each Loan Party has obtained all Governmental Authorizations and all commitments related thereto terminated;
(vi) All Governmental Authorizations consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Fifth Restatement Effective Date in connection with the Transaction transactions herein and the Facilities (except for (A) the filing continued operation of the UCC financing statements business conducted by the Loan Parties in substantially the same manner as conducted prior to be filed on the Fifth Restatement Effective Date. Each such Governmental Authorization or consent is in full force and effect, (B) except in a case where the filing of the Intellectual Property Security Agreements failure to be filed obtain or maintain a Governmental Authorization or consent, either individually or in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarksaggregate, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall could not have been obtained and shall remain in effect and all a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion, if any, has expired; and
(D) No temporary restraining order, preliminary or permanent injunction or other order preventing the Loan Parties, the Administrative Agent or any Lender Party from entering into this Agreement or the other Loan Documents or consummating the transactions contemplated hereby or thereby shall have been issued by any court of competent jurisdiction or other Governmental Authority having authority over any such Person and remains in effect, and no applicable Governmental Rules shall be enacted or deemed applicable to the Loan Documents by a Governmental Authority having authority over any such Person that could reasonably be expected to have a material adverse effect on makes the ability closing of the Borrower and the Guarantors to perform their obligations under the Credit DocumentsLoan Documents or any extensions of credit thereunder illegal;
(vii) All Pre-Commitment Information shall be trueTo the extent not included in clause (b) or (c) above, correct and complete in all material respects. No additional information a certified copy of each of the Material Documents of the Loan Parties that pertains to the period have been executed prior to the execution of the Commitment Letter Fifth Restatement Effective Date (including all exhibits, appendices, schedules, annexes and attachments thereto and amendments and assignments thereof);
(viii) Each Loan Party shall have come provided the documentation and other information to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectPatriot Act;
(viiiix) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Fifth Restatement Effective Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Fee Letter) shall have been paid;);
(ixx) Payment of all All fees and expenses of counsel to the Administrative Agent invoiced through the Fifth Restatement Effective Date to the extent the Borrower or CBII has received an invoice thereforDate; and
(xxi) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Loan Document. Negligence and fraud counterclaims asserted in the ongoing PCL Litigation, as defined in the Fourth Amended and Restated Credit Documents.Agreement. We are also party to claims that arise in the normal course of business. Management believes that the outcomes of such claims will not have a material adverse impact on our financial condition, cash flows or results of operations.
1. The real property shown on Schedules A and B.
2. The following real property situate in the City of Reno, County of Washoe, State of Nevada. PARCEL 1: ALL THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 25, TOWNSHIP 19 NORTH, RANGE 19 EAST, M.D. B. & M., LYING WESTERLY OF THE WESTERLY BANK OF THE ▇▇▇▇▇▇▇ DITCH. EXCEPTING THEREFROM THAT PORTION CONVEYED TO ▇▇▇▇ ▇. ▇▇▇▇▇ BY DEED RECORDED DECEMBER 26, 1947 IN BOOK 208, PAGE 547 AS DOCUMENT NO. 159106. ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF RENO BY DEED OF DEDICATION RECORDED DECEMBER 11, 1969 IN BOOK 432, PAGE 538 AS DOCUMENT NO. 161681. (portion of APN 024-040-07) PARCEL 2: COMMENCING AT THE NORTHWEST CORNER OF SECTION 25, TOWNSHIP 19 NORTH, RANGE 19 EAST, M.D.B.&M.; THENCE SOUTH 73°50'45" EAST 1807.93 FEET; THENCE EAST 900 FEET TO A POINT ON THE NORTH-SOUTH QUARTER LINE OF SAID SECTION 25; THENCE ALONG SAID LINE SOUTH 0°23'30" EAST 205 FEET TO A FENCE AT THE NORTHWEST CORNER OF THE PARCEL OF LAND DESCRIBED IN THE DEED TO ▇▇▇▇ ▇. ▇▇▇▇▇, RECORDED DECEMBER 26, 1947 IN BOOK 208 OF DEEDS, PAGE 547, FILE NO. 159106, DEED RECORDS. THENCE CONTINUING SOUTH 0°23'30" EAST 40.00 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT BEING ON THE SAME LINE AS DESCRIBED IN THE DEED TO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND WIFE, RECORDED IN BOOK 171, PAGE 172, DEED RECORDS; THENCE ALONG SAID LINE NORTH 0°23'30" WEST 40.0 FEET TO SAID FENCE ALONG THE NORTHERN LINE OF THE PARCEL DESCRIBED IN SAID DEED TO ▇▇▇▇▇; THENCE ALONG LAST MENTIONED LINE, NORTH 67°20'30" EAST, 97.32 FEET, MORE OR LESS TO A FENCE ALONG THE WESTERN BANK OF THE COCHRANE DITCH; THENCE ALONG SAID LAST MENTIONED LINE, SOUTH 5°32'30" WEST, 77.29 FEET, MORE OR LESS, TO A LINE DRAWN NORTH 89°36'30" EAST FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 89°36'30" WEST, 82.08 FEET, MORE OR LESS TO THE TRUE POINT OF BEGINNING, BEING A PORTION OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 25. NOTE: The above metes and bounds description appeared previously in that certain ▇▇▇▇▇, Bargain and Sale Deed recorded in the office of the County Recorder of Washoe County, Nevada on October 2, 2015, as Document No. 4519742 of Official Records. (remainder of APN 024-040-07)
3. The following real property situate in the County of ▇▇▇▇▇▇, State of Colorado: Parcel 1: Lot 1, Block 1, Monarch Casino Filing No. 1, plat recorded December 12, 2014, at Reception No. 152710, County of ▇▇▇▇▇▇, State of Colorado. Parcel 2: Tract “B”, Monarch Casino Filing No. 1, City of Black Hawk, County of ▇▇▇▇▇▇, State of Colorado, more particularly describe as follows: Beginning at the Southeast corner of said Tract “B” thence along the Southerly line of said Tract N 72°00’00” W, 147.63 feet , with all bearings contained herein relative thereto; Thence continuing along said Tract the following five (5) courses:
1. N 13°53’59” E, 48.33 feet;
2. Thence N 34°27’04” E, 38.61 feet;
3. Thence along the arc of a curve to the right 52.21 feet, having a radius of 718.60 feet, a central angle of 04°09’45” and which chord bears S 56°16’46” E, 52.20 feet;
4. Thence S 54°11’53” E 6.45 feet;
5. Thence S 32°28’22” E, 108.60 feet to the Point of Beginning Also described in Exhibit A of Ordinance Number 2015-24 recorded November 13, 2015, at Reception No. 155143. Parcel 3: A Parcel of Land located within the Main Street right-of-way, City of Black Hawk, County of ▇▇▇▇▇▇, State of Colorado, more particularly described as follows: Beginning at the Southeast corner of Tract “B”, Monarch Casino Filing No. 1, Whence the Southerly line thereof bears N 72°00’00” W with all bearings contained herein relative thereto; Thence S 12°21’00” W, 27.06 feet; Thence N 66°15’29” W, 27.44 feet; Thence N 73°32’04” W, 43.49 feet; Thence N 75°33’29” W, 71.19 feet; Thence N 77°03’55” W, 81.60 feet; Thence N 13°54’36” E, 6.00 feet to a point along the Southerly line of Monarch Casino Filing No. 1; Thence along the common line of said Subdivision and the Main Street right-of-way the following four (4) courses:
1. S 76°05’24” E, 63.64 feet;
2. Thence along the arc of a curve to the left 15.71 feet, having a radius of 10.00 feet, a central angle of 90°00’37” and which bears N 58°54’18” E, 14.14 feet;
3. Thence N 13°53’59” E, 15.80 feet;
4. Thence S 72°00’00” E, 149.27 feet to the Point of Beginning. As described in Exhibit B of Ordinance Number 2015-24 recorded November 13, 2015, at Reception No. 155143.
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign 364-DAY CREDIT AGREEMENT Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i1) Evidence A duly completed and timely delivered Notice of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d)Borrowing;
(ii2) The pay-off letter in respect of the Indebtedness under the Existing Credit AgreementDisclosure Letter, duly executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedBorrower;
(iii3) A hierarchy report copy of the indenture (including, as applicable, the form of debenture and the form of the note) and other documents, agreements and instruments, related to the Convertible Subordinated Debentures, together with all amendments and indentures supplemental thereto through the Closing Date, certified by an Executive Officer of Borrower;
(4) An organization chart for the CBII EntitiesBorrower and its Subsidiaries, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary Executive Officer of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentBorrower;
(iv5) A certificate of the President, Chief Financial Officer, Chief Accounting an Executive Officer or Treasurer of CBIIBorrower, addressed to the Administrative Agent and dated the Effective Closing Date, certifying that each that:
(a) The representations and warranties set forth in Paragraph 4.01 are true and correct in all material respects as of the Significant Subsidiaries such date (except for such representations and warranties made as of a specified date, which shall be true as of such date); and
(b) No Event of Default or Default has occurred and is and, after the execution and delivery continuing as of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventsuch date;
(v6) The Lead Arranger shall Evidence satisfactory to Administrative Agent that the proceeds of the initial Loans to be satisfied made on the Closing Date will be used to satisfy all outstanding indebtedness of Borrower under the Prior Credit Agreement, that all Existing Indebtedness, the obligations of Borrower under the Prior Credit Agreement (other than the Surviving Indebtedness, has inchoate indemnity obligations) have been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto that the Prior Credit Agreement is terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii7) All fees and expenses payable to the Administrative Agent Agents and the Lenders Banks on or prior to the Effective Closing Date (including all Origination Fees and all fees payable to Rabobank the Agents pursuant to the Agents' Fee Letter) shall have been paidLetters);
(ix) Payment of all 8) All fees and expenses of counsel to the Administrative Agent Agents' counsels through the Effective Date to the extent the Borrower or CBII has received an invoice thereforClosing Date; and
(x9) Such other evidence as the Administrative any Agent or any Lender Bank Party may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
3.01 3 SCHEDULE 4.01(p) See Disclosure Letter
4.01 (p)-1
(a) See Disclosure Letter
(a) 1 EXHIBIT A NOTICE OF BORROWING [Date] Canadian Imperial Bank of Commerce, as Administrative Agent ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇ Syndications
1. Reference is made to that certain Credit Agreement, dated as of June 6, 1997 (as amended from time to time, the "Credit Agreement"), among Quantum Corporation ("Borrower"), the financial institutions listed in Schedule I to the Credit Agreement (the "Banks"), ABN AMRO Bank N.V., San Francisco International Branch ("ABN") and CIBC Inc., as co-arrangers for the Banks, Canadian Imperial Bank of Commerce, as administrative agent for the Banks (in such capacity, "Administrative Agent"), ABN, as syndication agent for the Banks, Bank of America National Trust and Savings Association, as documentation agent for the Banks, and certain co-agents listed therein. Unless otherwise indicated, all terms defined in the Credit Agreement have the same respective meanings when used herein.
Appears in 1 contract
Sources: Credit Agreement (Quantum Corp /De/)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the pro forma capital structure and ownership structure and the shareholding arrangements of Holdings, the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto Borrower and their Subsidiaries (and all agreements relating thereto), in form and substance reasonably satisfactory to the Administrative Agent;
(ii) A duly completed Notice of Loan Borrowing for Revolving Loans, to the extent any Revolving Loans are requested to be made to the Borrower on the Closing Date;
(iii) A duly completed Notice of Loan Borrowing for the Term Loans;
(iv) A certificate funds flow statement detailing the disbursement of the PresidentBorrowings to occur on the Closing Date, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed in form and substance reasonably acceptable to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be SolventAgent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than Certificates of insurance and endorsements (including a lender’s loss payable endorsement) naming the Surviving Indebtedness, has been prepaid, redeemed or defeased Collateral Agent as mortgagee and loss payee and the Collateral Agent as an additional insured in full or otherwise satisfied and extinguished and all commitments related thereto terminatedaccordance with Section 5.01(e) of this Agreement;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective DateSince January 1, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks2013, and the United States Copyright Office relative to copyrights on the Effective Date no event or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) circumstance shall have been obtained and shall remain occurred that has resulted or could result in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on change in the ability business, operations, financial condition, assets or liabilities (whether actual or contingent) of the Borrower and the Guarantors to perform their obligations under the Credit DocumentsLoan Parties taken as a whole;
(vii) All Pre-Commitment Information There shall be truenot exist any pending or, correct and complete in all material respects. No additional information that pertains to the period prior to the execution knowledge of the Commitment Letter shall have come to the attention a Responsible Officer of the Administrative Agent, any of the Lead Arranger Holdings or the Lenders Borrower, threatened litigation, bankruptcy or other proceeding that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectEffect on the Loan Parties and the Restricted Subsidiaries, taken as a whole;
(viii) All fees and expenses payable to There shall not exist any order, decree, judgment, ruling or injunction which restrains any part of the Administrative Agent and consummation of the Lenders on transactions contemplated under this Agreement or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paidother Credit Documents;
(ix) Payment A certificate of a Senior Finance Officer of Holdings and Borrower certifying that (A) the representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects as of such date (except for such representations and warranties made as of a specified date, which shall be true and correct in all material respects as of such date); (B) no Default or Event of Default shall have occurred and be continuing; and (C) the Loan Parties and the Restricted Subsidiaries have obtained all Governmental Authorizations and material third party consents, in each case that are necessary to have been obtained prior to the Closing Date and which are in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent could not have a Material Adverse Effect;
(x) The Loan Parties shall have provided to the Lenders such documentation and other information that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act;
(xi) All reasonable fees and expenses due to the Lenders, the Administrative Agent and counsel to the Administrative Agent shall have been paid (including reasonable fees and expenses of counsel to the Administrative Agent GE Capital Parties invoiced through the Effective Closing Date and fees payable to GE Capital pursuant to the extent the Borrower or CBII has received an invoice thereforFee Letters); and
(xxii) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness Consummation of the representations Borrower Subordinated Notes Redemption and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation execution and warranty delivery of the Subordinated Note Amendments. Each Auction Permitted Term Loan Purchase shall be true and correct consummated in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance accordance with the terms and conditions contained in this Agreement and the other Credit DocumentsAuction Process set forth herein.
Appears in 1 contract
Other Items. (i1) Evidence satisfactory to the Agent that (a) if applicable, the proceeds of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee initial Loans to be made on the Closing Date will be used to satisfy all outstanding indebtedness of Borrower under the Prior Credit Agreement and additional insured, as required by Section 5.01(d)(b) that the Prior Credit Agreement is terminated;
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv2) A certificate of the Presidentchief executive officer, Chief Financial Officerpresident, Chief Accounting Officer chief financial officer or Treasurer treasurer of CBIIBorrower, addressed to the Administrative Agent and dated the Effective Closing Date, certifying that each of that:
(a) The representations and warranties set forth in Paragraph 4.01 and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated therebysuch date (except for such representations and warranties made as of a specified date, will which shall be Solventtrue as of such date); and
3.01 2
(b) No Event of Default or Default has occurred and is continuing as of such date;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii3) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank Agent pursuant to the Agent's Fee Letter) shall have been paid);
(ix4) Payment of all All fees and expenses of Agent's counsel to the Administrative Agent through the Effective Date Closing Date;
(5) Such Uniform Commercial Code termination statements (appropriately completed and executed) for filing in such jurisdictions as Agent may request to terminate any financing statement evidencing Liens of other Persons, except for any such prior Liens which are expressly permitted by the extent Credit Agreement to be prior; provided, however, that evidence of such filed Uniform Commercial Code termination statements need only be delivered on the Borrower earlier to occur of (i) the date of the initial Borrowing under this Agreement or CBII has received an invoice therefor(ii) thirty (30) days after the Closing Date; and
(x6) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
3.01 3 SUBSIDIARIES [To be provided by Borrower]
4.01 (q)-1
(a) PERMITTED INDEBTEDNESS [To be provided by Borrower]
5.02 (a)-1 91 SCHEDULE 5.02(e) PERMITTED LIENS [To be provided by Borrower]
Appears in 1 contract
Sources: Annual Report
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule III, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the 364-DAY CREDIT AGREEMENT Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Loan Borrowing for Revolving Loans;
(ii) A duly completed Notice of Account Designation;
(iii) The capital and ownership structure (including operating agreements, company agreements, articles of incorporation and by-laws), stockholders agreements and management of the Loan Parties shall be reasonably satisfactory to Administrative Agent, WFS and Lenders;
(iv) Certificates of insurance, loss payable endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee payee and the Administrative Agent and the Lenders as additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed this Agreement and delivered by the parties thereto, an insurance analysis and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory review from a consultant acceptable to the Administrative Agent;
(ivv) There shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties, any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Loan Documents or the ability of the Lenders to exercise their rights thereunder;
(vi) There shall not exist (A) any order, decree, judgment, ruling or injunction which restrains any part of the consummation of the transactions contemplated under this Agreement in the manner contemplated by the Loan Documents (or any documents executed in connection therewith); or (B) any litigation pending or threatened against any Loan Party as of the Third Restatement Effective Date which could have a Material Adverse Effect;
(vii) Copies of all Rate Contracts to which a Borrower or any Loan Party is a party;
(viii) A certificate of the President, Chief Financial Officer, Chief Accounting Officer chief financial officer or Treasurer vice president of CBIIfinance of the Borrowers, addressed to the Administrative Agent and dated the Third Restatement Effective Date, certifying that:
(A) The representations and warranties set forth in Article IV and in the other Loan Documents are true and correct in all material respects as of such date (except to the extent that each such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the Significant Subsidiaries extent that such representation and warranty is andqualified by materiality, after the execution in which case such representation and delivery warranty must be true in all respects) as of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventsuch date);
(vB) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, No Default has been prepaid, redeemed or defeased in full or otherwise satisfied occurred and extinguished and all commitments related thereto terminatedis continuing as of such date;
(viC) All Each Loan Party has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Third Restatement Effective Date in connection with the Transaction transactions herein and the Facilities (except for (A) the filing continued operation of the UCC financing statements business conducted by the Loan Parties in substantially the same manner as conducted prior to be filed on the Third Restatement Effective Date. Each such Governmental Authorization or consent is in full force and effect, (B) except in a case where the filing of the Intellectual Property Security Agreements failure to be filed obtain or maintain a Governmental Authorization or consent, either individually or in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarksaggregate, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall could not have been obtained and shall remain in effect and all a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion, if any, has expired; and
(D) No temporary restraining order, preliminary or permanent injunction or other order preventing the Borrowers, the Administrative Agent or any Lender Party from entering into this Agreement or the other Loan Documents or consummating the transactions contemplated hereby or thereby shall have been issued by any court of competent jurisdiction or other Governmental Authority having authority over any such Person and remains in effect, and no applicable Governmental Rules shall be enacted or deemed applicable to the Loan Documents by a Governmental Authority having authority over any such Person that could reasonably be expected to have a material adverse effect on makes the ability closing of the Borrower and the Guarantors to perform their obligations under the Credit DocumentsLoan Documents or any extensions of credit thereunder illegal;
(viiix) All Pre-Commitment Information shall be trueTo the extent not included in clause (b) or (c) above, correct and complete in all material respects. No additional information a certified copy of each of the Material Documents of the Borrowers that pertains to the period have been executed prior to the execution of Third Restatement Effective Date (including all exhibits, appendices, schedules, annexes and attachments thereto and amendments and assignments thereof);
(x) Each Loan Party has provided the Commitment Letter shall have come documentation and other information to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectPatriot Act;
(viiixi) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Third Restatement Effective Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Fee Letter) shall have been paid);
(ixxii) Payment of all All fees and expenses of counsel to the Administrative Agent invoiced through the Third Restatement Effective Date to the extent the Borrower or CBII has received an invoice thereforDate; and
(xxiii) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit DocumentsLoan Document.
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: Five Year Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. On or prior to the Phase I Closing Date, Borrower delivered or caused to be delivered all of the following to Lender, in form and substance satisfactory to Lender, or Lender otherwise completed or obtained:
(i) Evidence of insurance endorsements or certificates naming reasonably satisfactory to Lender that the Administrative Agent as lenders’ loss payee, mortgagee Iowa Racing and additional insured, as required by Section 5.01(d)Gaming Commission has approved this Agreement and the other Credit Documents;
(ii) The pay-off letter in respect Evidence reasonably satisfactory to Lender that the City of Dubuque has approved this Agreement and the Indebtedness under the Existing other Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedDocuments;
(iii) A hierarchy report for the CBII EntitiesLender shall have completed all dueDue diligence concerning Borrower and its assets, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure in scope and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto results in all respects satisfactory to the Administrative AgentLender in ▇▇▇▇▇▇’s sole discretion;
(iv) A certificate of Such assurances as Lender deemsdeemed appropriate that the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to relevant Gaming Authorities havehad approved the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of transactions contemplated by the Credit Documents to the extent that such approval iswas required by applicable Gaming Laws;
(v) Since December 31, 2022, Confirmation that no event or circumstance shall havehad occurred since December 31, 2023, that has resulted or iswas reasonably likely to result in a material adverse change in the business, assets, liabilities, operations, performance or condition (financial or otherwise) of Borrower (taken as a whole);
(vi) There shall not exist anyConfirmation that no pending or threatened action, suit, investigation or proceeding had occurred, which, if adversely determined, could materially and adversely affect Borrower, any transaction contemplated hereby or the ability of Borrower to perform its obligations under the Credit Documents or the ability of Lender to exercise its rights thereunder;
(vii) There shall not existwas no existing (A) any order, decree, judgment, ruling or injunction which restrainsas of the Phase I Closing Date that restrained any part of the consummation of the transactions contemplated thereby, will be Solvent;
under this Agreement in the manner contemplated by the Credit Documents (v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary any documents executed in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, therewith); or (B) the filing any litigation pending or threatened against Borrower as of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Phase I Closing Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that which could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable There shall not exist anyNo material adverse change or material disruption in the financial, banking or capital markets had occurred as of the Phase I Closing Date that, in the judgment of ▇▇▇▇▇▇, hashad materially impaired, or could reasonably be expected to materially impair, the Administrative Agent and participation of any component of the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paidcredit facilities provided hereunder;
(ix) Payment A certificate of all fees a Responsible Officer, addressed to ▇▇▇▇▇▇ and expenses of counsel to dated the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; andPhase I Closing Date, certifying that:
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the The representations and warranties set forth in Article IV and in the other Credit Documents arewere true and correct in all material respects as of such date (unless any except to the extent that such representation or and warranty is qualified as to by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) both immediately before and after giving effect to the Transaction and as of such date); and
(B) No Default hashad occurred and isor was continuing as of such date; (C) Borrower hashad obtained all Governmental Authorizations and all consents of other Persons, in each case that arewere necessary or advisable to have been obtained prior to the compliance Phase I Closing Date in connection with the terms and conditions contained in this Agreement transactions herein and the other continued operation of the business conducted by Borrower in substantially the same manner as conducted prior to the Closing Date.Phase I Closing Date and that each such Governmental Authorization or consent was in full force and effect as of such date, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, could not have a Material Adverse Effect. All applicable waiting periods had expired without any action being taken or threatened by any competent authority that would have restrained, prevented or otherwise imposed adverse conditions on the transactions contemplated by the Credit Documents.. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing was pending as of the Phase I Closing Date, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion had expired; and
Appears in 1 contract
Sources: Credit Agreement
Other Items. (i) Evidence A duly completed Notice of insurance Revolving Loan Borrowing in the event that a Revolving Borrowing is to be made on the Funding Date;
(ii) A duly completed Notice of Term Loan Borrowing in the event that a Term Loan Borrowing is to be made on the Funding Date;
(iii) Original certificates of insurance, lender loss payable and mortgagee endorsements or certificates naming the Administrative Agent as lenders’ mortgagee, lender loss payee, mortgagee payee and additional insured, as required by Section 5.01(d)) of this Agreement;
(iiiv) The pay-off letter in respect of the Evidence that all existing Indebtedness under (including the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets ) of the CBII Entities other than Permitted Liens have Loan Parties has been or concurrently with the Effective Funding Date are is being releasedrepaid in full (other than Indebtedness described on Schedule 5.02(a));
(iiiv) A hierarchy report The Permitted Subordinated Indebtedness shall have been subordinated to the Obligations on terms satisfactory to the Administrative Agent and the Lenders, including payment and remedy blockage provisions upon the occurrence of a Default or Event of Default;
(vi) No event or circumstance shall have occurred that has resulted or could result in a material adverse change in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrowers and their Subsidiaries (taken as a whole);
(vii) Evidence that no material disruption of or a material adverse change in conditions in the financial, banking or capital markets shall have occurred which the Administrative Agent, in either of their sole discretion, deems material in connection with its ability to syndicate the Revolving Loan Commitment or Term Loan Commitment;
(viii) There shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties, any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Credit Documents or the ability of the Lenders to exercise their rights thereunder;
(ix) Copies of all Rate Contracts to which the Borrowers or any Subsidiary of a Borrower is a party;
(x) An organization chart for the CBII EntitiesBorrowers and their Subsidiaries, setting forth the relationship among such Persons, certified by an the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure each of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentBorrowers;
(ivxi) Each Loan Party has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Funding Date in connection with the transactions herein and all Governmental Authorizations and all consents of other Persons material to the continued operation of the business conducted by the Loan Parties in substantially the same manner as conducted prior to the Funding Date. Each such Governmental Authorization or consent is in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, could not have a Material Adverse Effect. All applicable waiting periods have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion has expired;
(xii) A certificate of a Responsible Officer of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBIIBorrowers, addressed to the Administrative Agent and dated the Effective Funding Date, certifying that that:
(A) The representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects as of such date (except for such representations and warranties made as of a specified date, which shall be true as of such date);
(B) No Default has occurred and is continuing as of such date; and
(C) The conditions set forth in Sections 3.02(d)(v) and (vi), Section 3.02(g)(i) and Section 3.02(h)(x) have been satisfied;
(xiii) A certified copy of each of the Significant Subsidiaries is andMaterial Documents, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventduly executed by each party thereto;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viiixiv) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Funding Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Administrative Agent’s Fee Letter) shall have been paid);
(ixxv) Payment of all All customary fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice thereforFunding Date; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Sands Regent)
Other Items. (i) Evidence A duly completed Notice of insurance endorsements or certificates naming Loan Borrowing for Revolving Credit Loans, to the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d)extent any Revolving Credit Loans are requested to be made to Borrower on the Closing Date;
(ii) The pay-off letter in respect A duly completed Notice of Loan Borrowing for the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedTenn Loans;
(iii) A hierarchy report for the CBII EntitiesThere shall not have occurred any Closing Date Material Adverse Effect since July 26, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent2016;
(iv) A certificate of a Responsible Officer of Borrower dated the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed Closing Date certifying that the condition set forth in subsection 6.2(c)(i) with respect to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be SolventSpecified Representations shall have been satisfied;
(v) The Lead Arranger So long as requested at least ten (10) business days prior to the Closing Date, the Administrative Agent shall be satisfied that have received, at least three (3) days prior to the Closing Date, all Existing Indebtednessdocumentation and other information required by regulatory authorities concerning Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, other than including the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminatedPATRIOT Act;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable due to the Lenders and the Administrative Agent and on the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
, or will be paid from the proceeds of initial funding of the Loans on the Closing Date (ix) Payment of all including fees and expenses of counsel to the Lenders in each case, invoiced three (3) days prior to the Closing Date in reasonable detail with supporting documentation);
(vii) The Administrative Agent through shall have, for the Effective Date benefit of the Secured Parties, a first priority security interest (subject to Permitted Liens) in all Collateral in which a lien can be perfected by (i) the extent filing of a Uniform Commercial Code financing statement, and/or (ii) the Borrower or CBII has received an invoice therefortaking of possession of the Collateral referred to in subsection 6.1 (f)(ii); and
(xviii) Such other evidence as Prior to, or substantially simultaneous with, the Administrative Agent or any Lender may reasonably request to establish initial advances under the Tranche B Tenn Loan Facility contemplated by subsection 2.1 and the Revolving Credit Loans contemplated by subsection 3.3, (A1) Holdings shall have received gross cash proceeds from the accuracy and completeness Equity Contribution, which gross cash proceeds of the representations Equity Contribution shall not be less than 60% of the total capitalization of Holdings and warranties in all material respects its Subsidiaries (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction Transactions) and (B2) the compliance Merger shall have been consummated in accordance in all material respects with the terms tenns of the Merger Agreement (without any amendments, modification or waiver of any provision thereof that would be materially adverse to the Lenders in their capacities as Lenders without the consent of the initial Lenders (it being understood and conditions contained agreed that (i) any increase in this the consideration for the Merger shall not be deemed to be materially adverse to the interests of the Lenders so long as such increase in consideration (1) is pursuant to any purchase price or similar adjustment provisions set forth in the Merger Agreement as of July 26, 2016 or (2) is not funded with additional indebtedness), (ii) the following decreases in the consideration for the Merger shall not be deemed to be materially adverse to the interests of the Lenders: (x) decreases pursuant to any purchase price or similar adjustment provisions set forth in the Merger Agreement as of July 26, 2016 and (y) decreases of less than 15% of the purchase price to the extent such decreases are applied first, to reduce the Equity Contribution to a percentage not less than 60% of the total pro forma capitalization of Holdings and its Subsidiaries and second, to reduce the amount of the Tranche B Tenn Loan Commitments and the other Credit DocumentsEquity Contribution on a pro rata basis and (iii) any amendment, modification or waiver of the definition of “Material Adverse Effect” (as defined in the Merger Agreement as in effect on July 26, 2016) or any component definition thereof shall be deemed materially adverse to the Lenders; provided that in each case the initial Lenders shall be deemed to have consented to such modification, amendment, waiver or consent unless they shall object thereto within 3 business days of receipt of written notice of such modification, amendment, consent or waiver).
Appears in 1 contract
Sources: Credit Agreement (Clearwater Analytics Holdings, Inc.)
Other Items. (i) To the extent a Borrowing is requested on the Closing Date, a duly completed and timely delivered Notice of Revolving Loan Borrowing;
(ii) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee payee and the Administrative Agent and Lenders as additional insuredinsureds, as required by Section 5.01(d)) of this Agreement;
(iiiii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence Evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Closing Date are being released, including all Liens granted in respect of the Foothill Facility;
(iiiiv) No event or circumstance shall have occurred and be continuing that has resulted in a Material Adverse Change;
(v) Neither a Material Adverse Change nor a material disruption of the financial, banking or capital markets shall have occurred which ▇▇▇▇▇ Fargo, in its sole discretion, deems material in connection with its ability to syndicate the Commitments and the Loans;
(vi) Other than the pending or threatened actions, suits, investigations or proceedings described in Schedule 4.01(g) hereto, there shall not exist any pending, or to the knowledge of any of Borrower’s officers or directors, threatened action, suit, investigation or proceeding, which, if adversely determined, could reasonably be expected to have a Material Adverse Effect on the CBII Entities, any transaction contemplated hereby or the ability of any Significant Party to perform its obligations under the Credit Documents or the ability of the Lenders to exercise their rights thereunder;
(vii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII the Borrower confirming the capital structure and ownership structure of the CBII Entities shall be as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(ivviii) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBIIthe Borrower, addressed to the Administrative Agent and dated the Effective Closing Date, certifying that each of that:
(A) The representations and warranties set forth in Article IV and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated therebysuch date (except for such representations and warranties made as of a specified date, will which shall be Solventtrue in all material respects as of such date); and
(B) No Default has occurred and is continuing as of such date;
(vix) The Lead Arranger shall be satisfied that Payment of all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Administrative Agent’s Fee Letter) shall have been paid);
(ixx) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice thereforClosing Date; and
(xxi) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the material accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Chiquita Brands International Inc)
Other Items. (1) A duly completed and timely delivered Acquisition Request, duly executed by Lessee;
(2) A Closing Date Appraisal for the Property, dated as of a recent date prior to the Closing Date, appraising the Property at not less than the Acquisition Price;
(3) An Expiration Date Appraisal for the Property, dated as of a recent date prior to the Closing Date, appraising the Property at not less than the Total Commitment;
(4) An ALTA/ACSM survey of the Property (a) prepared and dated not more than two (2) months prior to the Closing Date by a registered surveyor reasonably satisfactory to Agent, (b) certified as correct and as (i) Evidence having been made in accordance with the most recent standards for "Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys," jointly established and adopted by ALTA and ACSM, and (ii) meeting the accuracy requirements of insurance endorsements or certificates naming a Class A survey (as defined therein) and including items 2-4, 6, 7(a), 7(b), 7(c), 8-10 and 13 of Table A thereof, and (c) disclosing, among other things, (i) the Administrative location of the perimeter of the Property by courses and distances, (ii) all easements and rights-of-way, (iii) the lines of the street abutting the Property and the width thereof, (iv) encroachments, if any, and the extent thereof in feet and inches upon the Property, and (v) all boundary and lot lines, and all other matters that would be disclosed by inspection of the Property and the public records;
(5) Environmental reports and assessments of the Property satisfactory to Agent as lenders’ loss payeeissued by environmental consultants acceptable to Agent with respect to the Property (collectively, mortgagee and additional insured, as required by Section 5.01(dthe "Environmental Reports");
(ii6) The pay-off letter in respect A copy of the Indebtedness under the Existing Credit Fixed Price Remediation Agreement, the Escrow Agreement and the Water Supply Agreement, each duly executed and delivered by the parties thereto, together with a Consent to Assignment of Remediation Agreements, duly executed by Seller and evidence that all existing Liens on any assets Remediator, in the form attached as Exhibit B to the Assignment of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedRemediation Agreements;
(iii7) A hierarchy report for Except as otherwise provided pursuant to Item F.(7) below, certificates of insurance evidencing the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure insurance Lessee is required to maintain pursuant to Paragraph 3.03 of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentLease Agreement;
(iv8) Binders or similar commitments for the issuance of insurance with respect to the insurance that the Remediator is required to carry and maintain pursuant to the Fixed Price Remediation Agreement, in form and substance satisfactory to Lessor;
(9) The Disclosure Letter;
(10) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBIILessee, addressed to the Administrative Lessor and Agent and dated the Effective Closing Date, certifying that each that:
(a) The representations and warranties set forth in Paragraph 4.01 of the Significant Subsidiaries is andParticipation Agreement and in the other Operative Documents are true and correct in all material respects as of such date (except for such representations and warranties made as of a specified date, after the execution and delivery which shall be true as of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventsuch date);
(vb) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than No Default has occurred and is continuing as of such date; and
(c) All of the Surviving Indebtedness, has been prepaid, redeemed or defeased Operative Documents are in full or otherwise satisfied force and extinguished and all commitments related thereto terminated;effect on such date.
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii11) All fees and expenses payable to the Administrative Agent Lessor Parties and demanded by the Lenders Lessor Parties to be paid on or prior to the Effective Closing Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;Agent's Structuring Fee); and
(ix12) Payment of all All fees and expenses of counsel Lessor's and Agent's counsels and demanded by Agent to be paid on or prior to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; andClosing Date.
3.01 5 95 SCHEDULE 4.01(q) SUBSIDIARIES See Disclosure Letter
4.01 (xq)-1 SCHEDULE 5.02(c) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.INVESTMENT POLICY See Disclosure Letter
Appears in 1 contract
Other Items. (i) Evidence Such other agreements, documents, instruments, certificates and materials as Lender may request to determine the acceptability of insurance endorsements or certificates naming any such Additional Eligible Resort, to evidence the Administrative Agent as lenders’ loss payee, mortgagee Obligations; to evidence and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect perfect the rights and Liens and security interests of the Indebtedness under the Existing Credit Agreement, executed and delivered Lender contemplated by the parties theretoLoan Documents, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of effectuate the transactions contemplated therebyherein, will be Solvent;
(v) The Lead Arranger including, without limitation, true copies of all Resort Documents for each such Additional Eligible Resort, all Timeshare Documents and operating and management contracts and agreements, evidence of with the applicable Timeshare Act and other applicable laws, evidence of all required governmental licenses and permits; title searches; title commitments or policies, including. Complete and legible copies of each title exception, engineering, environmental and soil reports, evidence of compliance with all applicable zoning and building codes; each of which shall be satisfied that all Existing Indebtednesssatisfactory to Lender in its sole and absolute discretion. IN THE EVENT THAT LENDER DETERMINES, other than the Surviving IndebtednessIN ITS SOLE AND ABSOLUTE DISCRETION, has been prepaidTHAT ANY OF THE CONDITIONS SET FORTH ABOVE OR OTHERWISE CONTAINED IN THIS FIRST AMENDMENT OR SET FORTH IN THE TRANCHE A LOAN AGREEMENT, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective DateTHE TRANCHE B LOAN AGREEMENT OR THE INVENTORY LOAN ARE NOT SATISFIED ON OR BEFORE MAY 31, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks2002, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be trueTHEN THIS FIRST AMENDMENT, correct and complete in all material respectsAND THE OBLIGATIONS OF LENDER HEREUNDER, SHALL BE NULL AND VOID IN ALL RESPECTS AB INITIO. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative AgentIN SUCH EVENT, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materialityTHE ORIGINAL AGREEMENT AND THE TERMS AND CONDITIONS THEREIN SET FORTH, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit DocumentsAS MODIFIED BY THE FORBEARANCE AGREEMENT AND THE EXTENSION LETTER, SHALL GOVERN AND CONTROL BORROWER'S OBLIGATION WITH RESPECT TO REPAYMENT IN FULL OF THE OBLIGATIONS, AS SUCH TERM IS DEFINED IN THE ORIGINAL AGREEMENT.
Appears in 1 contract
Sources: Loan and Security Agreement (Silverleaf Resorts Inc)
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Loan Borrowing;
(ii) The capital and ownership structure (including operating agreements, company agreements, articles of incorporation and by-laws), stockholders agreements and management of the Loan Parties shall be reasonably satisfactory to Administrative Agent, WFS and Lenders;
(iii) Certificates of insurance, loss payable endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee payee and the Administrative Agent and the Lenders as additional insured, as required by Section 5.01(d);
(ii) The payof this Agreement and an -4- 4159-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed 4780-3173 insurance analysis and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory review from a consultant acceptable to the Administrative Agent;
(iv) There shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties, any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Loan Documents or the ability of the Lenders to exercise their rights thereunder;
(v) There shall not exist (A) any order, decree, judgment, ruling or injunction which restrains any part of the consummation of the transactions contemplated under this Agreement in the manner contemplated by the Loan Documents (or any documents executed in connection therewith); or (B) any litigation pending or threatened against any Loan Party as of the Fourth Restatement Effective Date which could have a Material Adverse Effect;
(vi) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer treasurer of CBIIthe Borrowers, addressed to the Administrative Agent and dated the Fourth Restatement Effective Date, certifying that:
(A) The representations and warranties set forth in Article IV and in the other Loan Documents are true and correct in all material respects as of such date (except to the extent that each such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the Significant Subsidiaries extent that such representation and warranty is andqualified by materiality, after the execution in which case such representation and delivery warranty must be true in all respects) as of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventsuch date);
(vB) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, No Default has been prepaid, redeemed or defeased in full or otherwise satisfied occurred and extinguished and all commitments related thereto terminatedis continuing as of such date;
(viC) All Each Loan Party has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Fourth Restatement Effective Date in connection with the Transaction transactions herein and the Facilities (except for (A) the filing continued operation of the UCC financing statements business conducted by the Loan Parties in substantially the same manner as conducted prior to be filed on the Fourth Restatement Effective Date. Each such Governmental Authorization or consent is in full force and effect, (B) except in a case where the filing of the Intellectual Property Security Agreements failure to be filed obtain or maintain a Governmental Authorization or consent, either individually or in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarksaggregate, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall could not have been obtained and shall remain in effect and all a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents. No action, request for stay, -5- 4159-4780-3173 petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion, if any, has expired; and
(D) No temporary restraining order, preliminary or permanent injunction or other order preventing the Borrowers, the Administrative Agent or any Lender Party from entering into this Agreement or the other Loan Documents or consummating the transactions contemplated hereby or thereby shall have been issued by any court of competent jurisdiction or other Governmental Authority having authority over any such Person and remains in effect, and no applicable Governmental Rules shall be enacted or deemed applicable to the Loan Documents by a Governmental Authority having authority over any such Person that could reasonably be expected to have a material adverse effect on makes the ability closing of the Borrower and the Guarantors to perform their obligations under the Credit DocumentsLoan Documents or any extensions of credit thereunder illegal;
(vii) All Pre-Commitment Information shall be trueTo the extent not included in clause (b) or (c) above, correct and complete in all material respects. No additional information a certified copy of each of the Material Documents of the Borrowers that pertains to the period have been executed prior to the execution Fourth Restatement Effective Date (including all exhibits, appendices, schedules, annexes and attachments thereto and amendments and assignments thereof);
(viii) Assignment Agreements (as defined in the Existing Credit Agreement) from each of (A) Zions Bancorporation, N.A. dba Nevada State Bank and (B) CIT Bank, N.A., assigning, in each case, all of its rights and obligations under the Commitment Letter Existing Credit Agreement to ▇▇▇▇▇ Fargo;
(ix) Each Loan Party shall have come provided the documentation and other information to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectPatriot Act;
(viiix) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Fourth Restatement Effective Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Fee Letter) shall have been paid);
(ixxi) Payment of all All fees and expenses of counsel to the Administrative Agent invoiced through the Fourth Restatement Effective Date to the extent the Borrower or CBII has received an invoice thereforDate; and
(xxii) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit DocumentsLoan Document.
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming Due diligence satisfactory to the Administrative Agent as lenders’ loss payeeand the Lenders shall have been completed (including, mortgagee without limitation, corporate/company documentation, ownership and additional insured, as required by Section 5.01(dorganizational structure);
(ii) The pay-off letter in respect flow of funds, terms and amounts of any intercompany loans and management of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedBorrower Parties shall be reasonably satisfactory to Administrative Agent;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer chief financial officer of CBIIthe Borrower, addressed to the Administrative Agent and dated the Effective Closing Date, certifying that:
(A) The representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects as of such date (except to the extent that each such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the Significant Subsidiaries extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as of such specified date);
(B) The Borrower Parties are Solvent on a consolidated basis and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be SolventSolvent on a consolidated basis;
(vC) The Lead Arranger shall be satisfied that No Default has occurred and is continuing as of such date after giving effect to any Loans and L/C Obligations on such date; and
(D) Each Borrower Party has obtained all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished Governmental Authorizations and all commitments related thereto terminated;
(vi) All Governmental Authorizations consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Closing Date in connection with the Transaction transactions herein and the Facilities (except for (A) the filing continued operation of the UCC financing statements business conducted by the Borrower Parties in substantially the same manner as conducted prior to be filed on the Effective Closing Date. Each such Governmental Authorization or consent is in full force and effect, (B) except in a case where the filing of the Intellectual Property Security Agreements failure to be filed obtain or maintain a Governmental Authorization or consent, either individually or in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarksaggregate, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall could not have been obtained and shall remain in effect and all a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority that could reasonably be expected to have take action to set aside its consent on its own motion has expired;
(iv) To the extent not included in clause (b) or (c) above, a material adverse effect on certified copy of each of the ability Material Documents of the Borrower and the Guarantors to perform their obligations under the Credit Documentseach Guarantor (including all exhibits, appendices, schedules, annexes and attachments thereto and amendments and assignments thereof);
(viiv) All Pre-Commitment Information shall be true, correct Each Loan Party has provided the documentation and complete in all material respects. No additional other information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;Patriot Act; and
(viiivi) All reasonable and invoiced fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all Letter and fees and expenses of counsel to the Administrative Agent through Agent). [ ]. 20 ▇▇▇▇▇ Fargo Bank, National Association ▇▇▇▇ ▇. ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇ MAC D1109-019 ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Syndication Agency Services Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ E-mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
1. Reference is made to that certain Credit Agreement, dated as of October 25, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the Effective Date “Credit Agreement”), among International Rectifier Corporation, a Delaware corporation (the “Borrower”), the financial institutions party thereto from time to time (the extent “Lenders”), ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent for the Borrower or CBII has received an invoice therefor; and
Lenders (x) Such other evidence in such capacity, the “Administrative Agent”), as Swing Line Lender and as L/C Issuer. Unless otherwise indicated, all terms defined in the Administrative Agent or any Lender may reasonably request to establish (A) Credit Agreement have the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentssame respective meanings when used herein.
Appears in 1 contract
Sources: Credit Agreement (International Rectifier Corp /De/)
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Revolving Loan Borrowing;
(ii) Original certificates of insurance, loss payable and mortgagee endorsements or certificates naming the Administrative Agent as lenders’ mortgagee, loss payee, mortgagee payee and additional insured, as required by Section SECTION 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit this Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for Evidence that there shall not have occurred since December 31, 2000 any event or circumstance that has resulted or could reasonably be expected to result in a material adverse effect on the CBII Entitiescondition (financial or otherwise), setting forth business, operations, assets (including the relationship among such Persons, certified by the Secretary Empress Casino) or an Assistant Secretary properties of CBII confirming the capital structure (A) Argosy and ownership structure of the CBII Entities its Subsidiaries (taken as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agenta whole) or (B) Empress Casino Joliet;
(iv) Evidence that Argosy shall have issued the New Subordinated Notes;
(v) A copy of the indenture (including the form of note) and other documents, agreements and instruments, related to the New Subordinated Notes, together with all amendments and indentures supplemental thereto through the Restatement Effective Date;
(vi) Copies of all filings made by Argosy with the Securities and Exchange Commission in connection with the New Subordinated Notes, together with all exhibits and all amendments thereto through the Restatement Effective Date;
(vii) Evidence that (x) the Indebtedness outstanding hereunder on the Restatement Effective Date (after giving effect to all Loans to be incurred on such date) shall be permitted under (1) either Section 4.07(a)(i) of the Senior Subordinated Indenture or the interest coverage ratio test set forth in the first paragraph of Section 4.07(a) of the Senior Subordinated Indenture and (2) Section 4.07(a)(i) of the New Subordinated Indenture and (y) all actions necessary for the Loans hereunder to constitute "Designated Senior Indebtedness" under, and as defined in, the Senior Subordinated Indenture shall have been taken and that all actions necessary for the Loans hereunder to constitute "Designated Senior Indebtedness" under, and as defined in, the New Subordinated Indenture shall have been taken;
(viii) Evidence that no material disruption of or a material adverse change in conditions in the financial, banking or capital markets shall have occurred which ▇▇▇▇▇ Fargo, in its sole discretion, deems material in connection with its ability to syndicate the Commitments and the Loans;
(ix) Evidence that there shall not exist (A) any order, decree, judgment, ruling or injunction which restrains the consummation of the Acquisition in the manner contemplated by the Merger Agreement; or (B) any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties (including Empress Casino Joliet and its Subsidiaries), any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Credit Documents or the ability of the Lenders to exercise their rights thereunder, other than (1) the ▇▇▇▇▇▇▇ Lawsuit and (2) any litigation arising from a prior lending relationship between any Lender and Empress Entertainment, Inc. or Horseshoe Gaming Holding Corp.;
(x) A certificate of the President, President or Chief Financial Officer, Chief Accounting Officer or Treasurer of CBIIthe Borrowers, addressed to the Administrative Agent and dated the Restatement Effective Date, certifying that each of that:
(A) The representations and warranties set forth in ARTICLE IV and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities such date (except for (A) the filing such representations and warranties made as of the UCC financing statements to a specified date, which shall be filed on the Effective Date, true as of such date); and
(B) the filing No Default has occurred and is continuing as of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or such date.
(Cxi) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) The Borrowers shall have been obtained and shall remain in effect and paid all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be trueinterest, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Restatement Effective Date (including (A) all interest, fees and expenses accrued under the Existing Credit Agreement through the Restatement Effective Date and (B) all fees payable to Rabobank the Administrative Agent pursuant to the Administrative Agent's Fee Letter) shall have been paid);
(ixxii) Payment of The Borrowers shall have paid all fees and expenses of counsel to the Administrative Agent through the Restatement Effective Date;
(xiii) A copy of the Merger Agreement (including all exhibits, appendices, schedules, annexes and attachments thereto and amendments thereof), duly executed by each party thereto, and a copy of each agreement, certificate, opinion of counsel and other material writing delivered by or on behalf of each party to the Merger Agreement in connection with the closing of the Acquisition, with a letter from the Person delivering such writing authorizing reliance thereon by the Administrative Agent and the Lenders in the case of opinions of counsel;
(xiv) Evidence satisfactory to the Administrative Agent that all conditions precedent to the Acquisition under the Merger Agreement shall have been satisfied and that the closing of the Acquisition and the Effective Time (as defined in Section 1.03 of the Merger Agreement) will occur concurrently with the initial extension of credit hereunder in accordance with the Merger Agreement and applicable law for an aggregate purchase price not exceeding $465,000,000 plus any adjustments made pursuant to the Merger Agreement (without giving effect to any amendments or other modifications of the Merger Agreement which have not been approved by the Administrative Agent);
(xv) Evidence that each Loan Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Restatement Effective Date in connection with the Acquisition, the transactions herein and the continued operation of the business conducted by the Loan Parties in substantially the same manner as conducted prior to the extent Restatement Effective Date. Each such Governmental Authorization or consent shall be in full force and effect, except in a case where the Borrower failure to obtain or CBII has received an invoice thereformaintain a Governmental Authorization or consent, either individually or in the aggregate, should not reasonably be expected to have a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Acquisition, the transactions contemplated by the Credit Documents 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 Governmental Authority to take action to set aside its consent on its own motion shall have expired;
(xvi) A certificate of the chief financial officer or treasurer of the Borrowers which sets forth the calculation of the Total Funded Debt to EBITDA Ratio as of the Restatement Effective Date, after giving effect to the consummation of the Acquisition on a pro forma basis;
(xvii) Copies of the Transfer Agreement and each document and instrument delivered in connection therewith, in each case duly executed by each party thereto; and
(xxviii) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Argosy Gaming Co)
Other Items. (i1) Evidence A duly completed and timely delivered Notice of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d)Borrowing;
(ii2) The pay-off letter in respect of the Indebtedness under the Existing Credit AgreementBorrower Disclosure Letter, duly executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedBorrower;
(iii3) A hierarchy report An organization chart for the CBII EntitiesGuarantor, its Subsidiaries, Borrower and its Subsidiaries, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary Executive Officer of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentBorrower;
(iv4) A certificate of the PresidentEvidence satisfactory to Agent that since September 30, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date1998, (Bi) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent no event has occurred and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and no condition exists which could reasonably be expected to have a Material Adverse EffectEffect and (ii) no change has occurred to the capital structure of Borrower which is unacceptable to Agent in its sole discretion;
(viii5) A certificate of an Executive Officer of Borrower, addressed to Agent and dated the Closing Date, certifying that:
(a) The representations and warranties of Borrower and its Subsidiaries set forth in Paragraph 4.01 and the representations and warranties of Borrower and its Subsidiaries and Guarantor and its Subsidiaries set forth in the other Credit Documents are true and correct in all material respects as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true as of such date); and
(b) No Event of Default or Default has occurred and is continuing as of such date;
(6) Evidence satisfactory to Agent that the proceeds of the initial Loans to be made on the Closing Date will be used to satisfy all outstanding indebtedness of Borrower under the Prior Credit Agreement, that the obligations of Borrower under the Prior Credit Agreement (other than inchoate indemnity obligations) have been satisfied and that the Prior Credit Agreement is terminated;
(7) All fees and expenses payable to the Administrative Agent and the Lenders Banks on or prior to the Effective Closing Date (including all Origination Fees and all fees payable to Rabobank Agent pursuant to the Agent's Fee Letter) shall have been paidLetters);
(ix) Payment of all 8) All fees and expenses of Agent's counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice thereforClosing Date; and
(x9) Such other evidence as the Administrative Agent or any Lender Bank may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Quantum Corp /De/)
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Revolving Loan Borrowing;
(ii) Original certificates of insurance, loss payable and mortgagee endorsements or certificates naming the Administrative Agent as lenders’ mortgagee, loss payee, mortgagee payee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit this Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for Evidence that there shall not have occurred since December 31, 2003 any event or circumstance that has resulted or could reasonably be expected to result in a material adverse effect on the CBII Entitiescondition (financial or otherwise), setting forth the relationship among such Personsbusiness, certified by the Secretary operations, assets or an Assistant Secretary properties of CBII confirming the capital structure Argosy and ownership structure of the CBII Entities its Subsidiaries (taken as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agenta whole);
(iv) Evidence that (x) the Indebtedness outstanding hereunder on the Restatement Effective Date (after giving effect to all Loans to be incurred on such date) shall be permitted under all documents, instruments and agreements evidencing Subordinated Indebtedness, and the Borrowers shall have delivered to the Administrative Agent an officer’s certificate demonstrating compliance with such sections and (y) all actions necessary for the Loans hereunder to constitute “Senior Indebtedness” and “Designated Senior Indebtedness” under, and as defined in, the 2001 Senior Subordinated Indenture and the 2004 Senior Subordinated Indenture and comparable treatment under all other documents, instruments and agreements evidencing other Subordinated Indebtedness (to the extent applicable) shall have been taken;
(v) Evidence that no material disruption of or a material adverse change in conditions in the financial, banking or capital markets shall have occurred which ▇▇▇▇▇ Fargo, in its sole discretion, deems material in connection with its ability to syndicate the Commitments and the Loans;
(vi) Evidence that there shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties, any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Credit Documents or the ability of the Lenders to exercise their rights thereunder;
(vii) A certificate of the President, Chief Financial Officer, Chief Accounting Officer president or Treasurer chief financial officer of CBIIthe Borrowers, addressed to the Administrative Agent and dated the Restatement Effective Date, certifying that each of that:
(A) The representations and warranties set forth in Article IV and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities such date (except for (A) the filing such representations and warranties made as of the UCC financing statements to a specified date, which shall be filed on the Effective Date, true as of such date); and
(B) the filing No Default has occurred and is continuing as of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;such date.
(viii) All The Borrowers shall have paid all interest, fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Restatement Effective Date (including (A) all interest, fees and expenses accrued under the Existing Credit Agreement through the Restatement Effective Date and (B) all fees payable to Rabobank the Administrative Agent pursuant to the Administrative Agent’s Fee Letter) shall have been paid);
(ix) Payment of The Borrowers shall have paid all fees and expenses of counsel to the Administrative Agent and any title company(ies) through the Restatement Effective Date to Date;
(x) Copies of the extent Transfer Agreement and any amendments thereto and each document and instrument delivered in connection therewith, in each case duly executed by each party thereto;
(xi) The Borrowers shall have delivered a true and correct copy of: (i) each of the Borrower Development Agreements and all amendments and modifications thereto, and (ii) all leases of any portion of the real property occupied or CBII has received an invoice therefor; operated by the Borrowers in Baton Rouge, Louisiana, and all amendments and modifications thereto (collectively, the “Baton Rouge Leases”), and
(xxii) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Argosy Gaming Co)
Other Items. (i) Evidence A duly completed Notice of insurance Revolving Loan Borrowing in the event that a Revolving Borrowing is to be made on the Funding Date;
(ii) A duly completed Notice of Term Loan Borrowing in the event that a Term Loan Borrowing is to be made on the Funding Date;
(iii) Original certificates of insurance, lender loss payable and mortgagee endorsements or certificates naming the Administrative Agent as lenders’ mortgagee, lender loss payee, mortgagee payee and additional insured, as required by Section 5.01(d)) of this Agreement;
(iiiv) The pay-off letter in respect of the Evidence that all existing Indebtedness under (excluding the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets ) of the CBII Entities other than Permitted Liens have Loan Parties has been or concurrently with the Effective Funding Date are is being releasedrepaid in full (other than Indebtedness described on Schedule 5.02(a));
(iiiv) A hierarchy report The Permitted Subordinated Indebtedness shall have been subordinated to the Obligations on terms satisfactory to the Administrative Agent and the Lenders, including payment and remedy blockage provisions upon the occurrence of a Default or Event of Default;
(vi) No event or circumstance shall have occurred that has resulted or could result in a material adverse change in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrowers and their Subsidiaries (taken as a whole);
(vii) Evidence that no material disruption of or a material adverse change in conditions in the financial, banking or capital markets shall have occurred which the Administrative Agent, in either of their sole discretion, deems material in connection with its ability to syndicate the Revolving Loan Commitment or Term Loan Commitment;
(viii) There shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties, any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Credit Documents or the ability of the Lenders to exercise their rights thereunder;
(ix) Copies of all Rate Contracts to which the Borrowers or any Subsidiary of a Borrower is a party;
(x) An organization chart for the CBII EntitiesBorrowers and their Subsidiaries, setting forth the relationship among such Persons, certified by an the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure each of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentBorrowers;
(xi) Each Loan Party has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Funding Date in connection with the transactions herein and all Governmental Authorizations and all consents of other Persons material to the continued operation of the business conducted by the Loan Parties in substantially the same manner as conducted prior to the Funding Date. Each such Governmental Authorization or consent is in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, could not have a Material Adverse Effect. All applicable waiting periods have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion has expired;
(xii) The Borrowers shall be in compliance with all of the financial covenants contained in Section 5.03 hereof for the most recent period for which financial information is available (the “Test Period”), on a pro forma basis, based upon the assumptions that: (i) the Acquisition was consummated on the first day of the Test Period, (ii) an amount equal to the purchase price for the Acquisition was borrowed as a loan by the Borrowers on the first day of the Test Period, (iii) the applicable interest rate for such amount advanced under clause (ii) hereof was the average term loan interest rate under the Existing Credit Agreement in effect during the Test Period and (iv) scheduled amortization payments were due with respect to such amount advanced under clause (ii) hereof on dates and in amounts consistent with the percentages used to derive the amortization schedule for the “Term Loans” under and as defined in the Existing Credit Agreement.
(xiii) A certificate of a Responsible Officer of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBIIBorrowers, addressed to the Administrative Agent and dated the Effective Funding Date, certifying that that:
(A) The representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects as of such date (except for such representations and warranties made as of a specified date, which shall be true as of such date);
(B) No Default has occurred and is continuing as of such date; and
(C) The conditions set forth in Section 3.01(g)(i) and Section 3.01(h)(xii) have been satisfied;
(xiv) A certified copy of each of the Significant Subsidiaries is andMaterial Documents, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventduly executed by each party thereto;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viiixv) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Funding Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Administrative Agent’s Fee Letter) shall have been paid);
(ixxvi) Payment of all All customary fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice thereforFunding Date; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Sands Regent)
Other Items. (i) Evidence Such other agreements, documents, instruments, certificates and materials as Lender may request to determine the acceptability of insurance endorsements or certificates naming any such Additional Eligible Resort, to evidence the Administrative Agent as lenders’ loss payee, mortgagee Obligations; to evidence and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect perfect the rights and Liens and security interests of the Indebtedness under the Existing Credit Agreement, executed and delivered Lender contemplated by the parties theretoLoan Documents, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of effectuate the transactions contemplated therebyherein, will be Solvent;
(v) The Lead Arranger including, without limitation, true copies of all Resort Documents for each such Additional Eligible Resort, all Timeshare Documents and operating and management contracts and agreements, evidence of with the applicable Timeshare Act and other applicable laws, evidence of all required governmental licenses and permits; title searches; title commitments or policies, including. Complete and legible copies of each title exception, engineering, environmental and soil reports, evidence of compliance with all applicable zoning and building codes; each of which shall be satisfied that all Existing Indebtednesssatisfactory to Lender in its sole and absolute discretion. IN THE EVENT THAT LENDER DETERMINES, other than the Surviving IndebtednessIN ITS SOLE AND ABSOLUTE DISCRETION, has been prepaidTHAT ANY OF THE CONDITIONS SET FORTH ABOVE OR OTHERWISE CONTAINED IN THIS SECOND AMENDMENT OR SET FORTH IN THE ADDITIONAL CREDIT FACILITY LOAN AGREEMENT, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective DateTHE TRANCHE A LOAN AGREEMENT OR THE TRANCHE B LOAN AGREEMENT ARE NOT SATISFIED ON OR BEFORE MAY 31, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks2002, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be trueTHEN THIS SECOND AMENDMENT, correct and complete in all material respectsAND THE OBLIGATIONS OF LENDER HEREUNDER, SHALL BE NULL AND VOID IN ALL RESPECTS AB INITIO. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative AgentIN SUCH EVENT, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materialityTHE ORIGINAL AGREEMENT AND THE TERMS AND CONDITIONS THEREIN SET FORTH, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit DocumentsAS MODIFIED BY THE FORBEARANCE AGREEMENT AND THE EXTENSION LETTER, SHALL GOVERN AND CONTROL BORROWER'S OBLIGATION WITH RESPECT TO REPAYMENT IN FULL OF THE OBLIGATIONS, AS SUCH TERM IS DEFINED IN THE ORIGINAL AGREEMENT.
Appears in 1 contract
Sources: Loan and Security Agreement (Silverleaf Resorts Inc)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy of general applicability from lending to, establishing credit for the account of and/or doing any business whatsoever with Persons in the jurisdiction of such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Loan Borrowing for Revolving Loans;
(ii) Due diligence satisfactory to the Administrative Agent and the Lenders shall have been completed (including, without limitation, corporate/company documentation, ownership and organizational structure);
(iii) The flow of funds, the capital and ownership structure (including operating agreements, company agreements, articles of incorporation and by-laws), stockholders agreements and management of the Loan Parties shall be reasonably satisfactory to Administrative Agent, Lead Arranger and Lenders;
(iv) Certificates of insurance, loss payable endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee payee and the Administrative Agent and the Lenders as additional insured, as required by Section 5.01(d) of this Agreement;
(v) Since December 31, 2010, no event or circumstance shall have occurred that has resulted or could result in a material adverse change in the business, operations, condition (financial or otherwise), assets or liabilities (whether actual or contingent) of the Loan Parties (taken as a whole);
(iivi) The pay-off letter in respect There shall not exist (A) any order, decree, judgment, ruling or injunction which restrains any part of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
under this Agreement in the manner contemplated by the Credit Documents (v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary any documents executed in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, therewith); or (B) the filing any action, suit, investigation, proceeding or litigation pending or threatened against any Loan Party as of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Closing Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and which could reasonably be expected to have a Material Adverse Effect;
(vii) Copies of all Rate Contracts to which the Borrower or any Loan Party is a party;
(viii) A certificate of the chief financial officer of the Borrower, addressed to the Administrative Agent and dated the Closing Date, certifying that:
(A) The representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects as of such date (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as of such date);
(B) Borrower is in compliance, on a pro forma basis, with all financial covenants and as to the Total Leverage Ratio as of the Closing Date;
(C) No Default has occurred and is continuing as of such date; and
(D) Each Loan Party has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Closing Date in connection with the transactions herein and the continued operation of the business conducted by the Loan Parties in substantially the same manner as conducted prior to the Closing Date. Each such Governmental Authorization or consent is in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. All applicable waiting periods have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion has expired;
(ix) To the extent not included in clause (b) or (c) above, a certified copy of each of the Material Documents of the Borrower and each Guarantor (including all exhibits, appendices, schedules, annexes and attachments thereto and amendments and assignments thereof);
(x) Each Loan Party has provided the documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act;
(xi) The Lead Arranger shall not have become aware since May 31, 2011, of any material information or other matter that is inconsistent in a material and adverse manner with any previous due diligence, information or matter (including any financial information and projections previously delivered to the Lead Arranger);
(xii) The absence of any material adverse change or material disruption in the loan syndication, financial, banking or capital markets that, in the judgment of the Administrative Agent, has materially impaired, or could reasonably be expected to materially impair, the syndication of any component of the credit facilities provided hereunder;
(xiii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Fee Letter) shall have been paid);
(ixxiv) Payment of all All fees and expenses of counsel to the Administrative Agent invoiced through the Effective Date to the extent the Borrower or CBII has received an invoice thereforClosing Date; and
(xxv) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit DocumentsDocument Capitalized terms used but not defined in these Disclosure Schedules have the meanings ascribed to them in the Agreement. The representations, warranties, covenants and other obligations and agreements of the Borrower in the Agreement are made, given and undertaken subject to these Disclosure Schedules as provided in the Agreement. Section headings and subheadings are provided for convenience only. All descriptions of agreements or other matters appearing herein are summary in nature and are qualified by reference to the complete agreement or other documents. Except as otherwise required by the Agreement, in no event shall any disclosure be deemed to constitute an acknowledgment that such disclosure is material to the business or financial condition of the Borrower. Nothing in these schedules constitutes an admission of any liability of the Borrower to any third party, or an admission against the interest of the Borrower.
Appears in 1 contract
Sources: Credit Agreement (IPC the Hospitalist Company, Inc.)
Other Items. (i1) Evidence A duly completed and timely delivered Notice of insurance endorsements or certificates naming Borrowing for the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d)applicable Borrowing;
(ii2) The pay-off letter in respect Copies of the Indebtedness under NSI Acquisition Agreement; the Existing Credit AgreementContribution and Distribution Agreement dated as of December 31, executed 1997 between NSI and delivered NSUSA; the Tax Sharing and Indemnification Agreement dated as of December 31, 1997 among NSI, NSUSA and the shareholders of NSI and NSUSA; the Assumption of Liabilites and Indemnification Agreement dated as of December 31, 1997 between NSI and NSUSA; together with all amendments thereto through the Initial Closing Date; and, to the extent requested by the parties theretoAgent or any Lender, and evidence that all existing Liens on copies of any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedNSI Acquisition Documents;
(iii3) A hierarchy report Copies of all filings made by NSE with the Securities and Exchange Commission in connection with the NSI Acquisition, together with all exhibits and all amendments thereto through the Initial Closing Date;
(4) An organization chart for the CBII EntitiesBorrowers and their Subsidiaries, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentNSE;
(iv5) A certificate of the President, Chief Financial OfficerOfficer of NSE and a Statutory Auditor of NSJ, Chief Accounting Officer or Treasurer of CBIIrespectively, addressed to the Administrative Agent and dated the Effective Initial Closing Date, certifying that each of that:
(a) The representations and warranties set forth in Paragraph 4.01 and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated therebysuch date (except for such representations and warranties made as of a specified date, will which shall be Solventtrue as of such date); and
(b) No Default has occurred and is continuing as of such date;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii6) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Initial Closing Date (including any Commitment Fees payable on such Closing Date and all fees payable to Rabobank Agent pursuant to the Agent's Fee Letter) shall have been paid);
(ix7) Payment of all All fees and expenses of counsel to the Administrative Agent Agent's counsels through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; andInitial Closing Date;
(x) 8) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents; and
(9) Such documentation as ABN AMRO may require in order for NSJ to open an account with its Tokyo branch, including, without limitation, an Agreement on Bank Transactions and an Agreement on Overdraft in Current Account.
Appears in 1 contract
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Loan Borrowing;
(ii) The capital and ownership structure (including operating agreements, company agreements, articles of incorporation and by-laws), stockholders agreements and management of the Loan Parties shall be reasonably satisfactory to Administrative Agent and Lenders;
(iii) Certificates of insurance, loss payable endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee payee and the Administrative Agent and the Lenders as additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed this Agreement and delivered by the parties thereto, an insurance analysis and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory review from a consultant acceptable to the Administrative Agent;
(iv) Other than the PCL Litigation, there shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Loan Parties, any transaction contemplated hereby or the ability of any Loan Party to perform its obligations under the Loan Documents or the ability of the Lenders to exercise their rights thereunder;
(v) There shall not exist (A) any order, decree, judgment, ruling or injunction which restrains any part of the consummation of the transactions contemplated under this Agreement in the manner contemplated by the Loan Documents (or any documents executed in connection therewith); or (B) any litigation pending or threatened against any Loan Party as of the Sixth Restatement Effective Date which could have a Material Adverse Effect;
(vi) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer treasurer of CBIIthe Borrowers, addressed to the Administrative Agent and dated the Sixth Restatement Effective Date, certifying that:
(A) The representations and warranties set forth in Article IV and in the other Loan Documents are true and correct in all material respects as of such date (except to the extent that each such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the Significant Subsidiaries extent that such representation and warranty is andqualified by materiality, after the execution in which case such representation and delivery warranty must be true in all respects) as of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solventsuch date);
(vB) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, No Default has been prepaid, redeemed or defeased in full or otherwise satisfied occurred and extinguished and all commitments related thereto terminatedis continuing as of such date;
(viC) All Each Loan Party has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Sixth Restatement Effective Date in connection with the Transaction transactions herein and the Facilities (except for (A) the filing continued operation of the UCC financing statements business conducted by the Loan Parties in substantially the same manner as conducted prior to be filed on the Sixth Restatement Effective Date. Each such Governmental Authorization or consent is in full force and effect, (B) except in a case where the filing of the Intellectual Property Security Agreements failure to be filed obtain or maintain a Governmental Authorization or consent, either individually or in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarksaggregate, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall could not have been obtained and shall remain in effect and all a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion, if any, has expired; and
(D) No temporary restraining order, preliminary or permanent injunction or other order preventing the Loan Parties, the Administrative Agent or any Lender Party from entering into this Agreement or the other Loan Documents or consummating the transactions contemplated hereby or thereby shall have been issued by any court of competent jurisdiction or other Governmental Authority having authority over any such Person and remains in effect, and no applicable Governmental Rules shall be enacted or deemed applicable to the Loan Documents by a Governmental Authority having authority over any such Person that could reasonably be expected to have a material adverse effect on makes the ability closing of the Borrower and the Guarantors to perform their obligations under the Credit DocumentsLoan Documents or any extensions of credit thereunder illegal;
(vii) All Pre-Commitment Information shall be trueTo the extent not included in clause (b) or (c) above, correct and complete in all material respects. No additional information a certified copy of each of the Material Documents of the Loan Parties that pertains to the period have been executed prior to the execution of the Commitment Letter Sixth Restatement Effective Date (including all exhibits, appendices, schedules, annexes and attachments thereto and amendments and assignments thereof);
(viii) Each Loan Party shall have come provided the documentation and other information to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectPatriot Act;
(viiiix) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Sixth Restatement Effective Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Fee Letter) shall have been paid);
(ixx) Payment of all All fees and expenses of counsel to the Administrative Agent invoiced through the Sixth Restatement Effective Date to the extent the Borrower or CBII has received an invoice thereforDate; and
(xxi) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit DocumentsLoan Document.
Appears in 1 contract
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d)Borrowing;
(ii) The pay-off letter in respect of Due diligence satisfactory to the Indebtedness under Administrative Agent and the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens Lenders shall have been or concurrently with the Effective Date are being releasedcompleted (including, without limitation, corporate/company documentation, ownership and organizational structure);
(iii) A hierarchy report for Since December 31, 2008, no event or circumstance shall have occurred that has resulted or could reasonably be expected to result in a material adverse change in the CBII Entitiesbusiness, setting forth the relationship among such Personsoperations, certified by the Secretary condition (financial or an Assistant Secretary of CBII confirming the capital structure and ownership structure otherwise), assets, or liabilities (whether actual or contingent) of the CBII Entities Borrower individually or the Loan Parties (taken as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agenta whole);
(iv) A certificate There shall not exist (A) any order, decree, judgment, ruling or injunction which restrains any part of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
under this Agreement in the manner contemplated by the Credit Documents (v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary any documents executed in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, therewith); or (B) any litigation shall be pending or, to the filing Borrower’s knowledge, threatened against any Loan Party as of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Closing Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and which could reasonably be expected to have a Material Adverse Effect;
(viiiv) A certificate of a Responsible Officer of the Borrower, addressed to the Administrative Agent and dated the Closing Date, certifying that:
(A) The representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as of such date (except for such representations and warranties made as of a specified date, which shall be true as of such date); and
(B) No Default has occurred and is continuing as of such date;
(vi) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Fee Letter) shall have been paid);
(ixvii) Payment of all All fees and expenses of counsel to the Administrative Agent invoiced through the Effective Date to the extent the Borrower or CBII has received an invoice thereforClosing Date; and
(xviii) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
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Sources: Credit Agreement (Netflix Inc)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative The Agent as lenders’ loss payeeshall have received such other approvals, mortgagee opinions and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed documents relating to this Joinder Agreement and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;hereby as any Lender through the Agent may reasonably request.
5. Each Designated Borrower represents and warrants as follows:
(va) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing Each of the UCC financing financial statements to be filed on the Effective Dateof such Designated B▇▇▇▇▇▇▇ listed in Schedule 1, (B) the filing copies of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall which have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains furnished to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on and which constitute the most recent audited financial statements of such Designated Borrower, fairly present the financial condition of such Designated Borrower as of the respective dates and for the periods specified in such financial statements, all in accordance with GAAP consistently applied. There has been no material adverse change in the business, assets, operations or prior financial condition of such Designated Borrower since the date of the most recently audited financial statements of such Designated Borrower listed in such Schedule.
(b) Such Designated Borrower is not required by law to withhold or deduct any Taxes from or in respect of any sum payable by it to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence as the Administrative Agent or any Lender under the Credit Agreement.
6. This Joinder Agreement shall be governed by, and construed in accordance with, the law of the State of New York.
7. This Joinder Agreement may reasonably request be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to establish (A) be an original and both of which taken together shall constitute one and the accuracy and completeness same agreement.
8. Each Designated B▇▇▇▇▇▇▇ agrees that breach of any of the representations and warranties by such Designated Borrower in all material respects (unless any such representation paragraph 5 hereof or warranty is qualified as in the Certificate referred to materiality, in which case such representation and warranty paragraph 4(a) above shall be true an Event of Default with respect to such Borrower under Section 6.01(b) of the Credit Agreement.
9. The obligations and correct in all respects) both immediately before liabilities of each Designated Borrower under this Joinder Agreement shall not personally bind any of the directors, trustees, partners (whether general or limited), officers, shareholders, holders of interests or employees of such Designated Borrower but shall bind only the estate and after giving effect to Property of such Designated Borrower, and none of the Transaction directors, trustees, partners (whether general or limited), officers, shareholders, holders of interests and (B) employees of such Designated Borrower shall have any personal liability for the compliance with the terms obligations and conditions contained in liabilities of such Designated Borrower arising under or by virtue of this Agreement and the other Credit DocumentsJoinder Agreement.
Appears in 1 contract
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Term Loan Borrowing for each of the Term Loan A Loans and the Term Loan B Loans;
(ii) A duly completed and timely delivered Notice of Revolving Loan Borrowing;
(iii) Original certificates of insurance, lender loss payable and mortgagee endorsements or certificates naming the Administrative Agent as lenders’ mortgagee, lender loss payee, mortgagee payee and additional insured, as required by Section 5.01(d)) of this Agreement;
(iiiv) The pay-off letter in respect of the Evidence that all existing Indebtedness under (including the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets ) of the CBII Entities other than Permitted Liens have Borrower and its Subsidiaries has been or concurrently with the Effective Closing Date are is being releasedrepaid in full (other than Indebtedness described on Schedule 5.02(a));
(iiiv) No material adverse change shall have occurred in the business, assets, financial condition, operating performance or prospects of Varsity and its subsidiaries, taken as a whole, since the audited financial statements provided to the Administrative Agent as of December 31, 2002;
(vi) No material disruption of, or material adverse change in, conditions in the financial, banking or capital markets shall have occurred which ▇▇▇▇▇ Fargo, in its sole discretion, deems material in connection with its ability to syndicate the Revolving Loan Commitment, Term Loan A hierarchy report Commitment or Term Loan B Commitment;
(vii) There shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materially and adversely affect the Parent, the Borrower, any Subsidiary of the Borrower, any transaction contemplated hereby or the ability of the Parent, the Borrower or any Subsidiary of the Borrower to perform its obligations under the Credit Documents or the ability of the Lenders to exercise their rights thereunder;
(viii) Copies of all Rate Contracts to which the Borrower or any of its Subsidiaries is a party;
(ix) An organization chart for the CBII EntitiesBorrower and its Subsidiaries, setting forth the relationship among such Persons, certified by an the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative AgentBorrower;
(ivx) A certificate of a Responsible Officer of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBIIBorrower, addressed to the Administrative Agent and dated the Effective Closing Date, certifying that each of that:
(A) The representations and warranties set forth in Article IV and in the Significant Subsidiaries is and, after the execution and delivery of the other Credit Documents are true and the consummation correct in all material respects as of the transactions contemplated therebysuch date (except for such representations and warranties made as of a specified date, will which shall be Solventtrue and correct as of such date);
(B) No Default has occurred and is continuing as of such date; and
(C) The conditions set forth in Sections 3.01(d)(iv), (v) The Lead Arranger shall be satisfied that all Existing Indebtednessand (vi), other than the Surviving Indebtedness, has Section 3.01(g)(i) and Section 3.01(h)(vii) have been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminatedsatisfied;
(vixi) All Governmental Authorizations necessary A letter, in connection with the Transaction form and the Facilities (except for (A) the filing of the UCC financing statements substance satisfactory to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any executed by the Borrower (the “Syndication Letter”) confirming, among other things, that the Borrower will assist the Administrative Agent in forming a syndicate of Lenders and completing a syndication satisfactory to the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse EffectAdministrative Agent;
(viiixii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Closing Date (including all fees payable to Rabobank the Administrative Agent pursuant to the Administrative Agent’s Fee Letter) shall have been paid);
(ixxiii) Payment of all All fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice thereforClosing Date; and
(xxiv) Evidence that the Borrower and each Subsidiary of the Borrower shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Closing Date in connection with the transactions herein and the continued operation of the business conducted by the Borrower and such Subsidiaries in substantially the same manner as conducted prior to the Closing Date. Each such Governmental Authorization or consent shall be in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, should not reasonably be expected to have a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the Acquisition, the transactions contemplated by the Credit Documents 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 Governmental Authority to take action to set aside its consent on its own motion shall have expired; and
(xv) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Other Items. (i) Evidence A duly completed and timely delivered Notice of insurance Loan Borrowing for Revolving Loans;
(ii) A duly completed and timely delivered Notice of Loan Borrowing for Closing Date Term Loans;
(iii) Due diligence satisfactory to the Administrative Agent and the Lenders shall have been completed (including, without limitation, corporate/company documentation, ownership and organizational structure);
(iv) A funds flow statement detailing the disbursement of the Borrowings to occur on the Closing Date, in form and substance acceptable to the Administrative Agent;
(v) The capital and ownership structure (including operating agreements, company agreements, articles of incorporation and by-laws), stockholders agreements and management of the Loan Parties shall be reasonably satisfactory to Administrative Agent and the Lenders;
(vi) Certificates of insurance, loss payable endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee payee and the Administrative Agent as additional insured, as required by Section 5.01(d) of this Agreement;
(vii) A letter from the Borrower’s insurance broker to the Administrative Agent and the Lenders confirming copies of the insurance indicated on the liability insurance certificate and the property insurance certificate are valid, current coverage in place for ARC Document Solutions, Inc. and its domestic subsidiaries, and that, with respect to such insurance, confirming that Well Fargo Bank, N.A. has been named as additional insured with respect to the liability insurance and has also been named as additional insured, loss payee and lender’s loss payee with respect to the property insurance, and attaching copies of insurance certificates (including endorsements) for such insurance policies;
(viii) Evidence that all existing Indebtedness of the Loan Parties has been or substantially concurrently with the Closing Date is being repaid in full (other than Permitted Indebtedness) and all commitments (if any) in respect thereof shall have been terminated and all guaranties therefor and security therefor shall have been discharged and released (including customary payoff letters or the equivalent thereof);
(iiix) The pay-off letter in respect Copies of all Rate Contracts to which the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on Borrower or any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedLoan Party is a party;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(ivx) A certificate of the President, Chief Financial Officer, Chief Accounting Officer chief financial officer or Treasurer comparable officer of CBIIthe Borrower, addressed to the Administrative Agent and dated the Effective Closing Date, certifying that:
(A) The representations and warranties set forth in Article IV and in the other Credit Documents are true and correct in all material respects as of such date (except to the extent that each such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the Significant extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as of such date);
(B) Holdings and its Subsidiaries is on a consolidated basis are Solvent and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated hereby and thereby, will be Solvent;
(vC) The Lead Arranger shall be satisfied that all Existing IndebtednessSince December 31, other than the Surviving Indebtedness2013, no event has been prepaidoccurred and no condition exists which, redeemed either individually or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarksaggregate, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viiiD) No material adverse change in the business, assets, liabilities, operations, performance or condition (financial or otherwise) of the Borrower individually or the Credit Parties (taken as a whole) has occurred since December 31, 2013.
(E) No Default has occurred and is continuing as of such date;
(F) Each Loan Party has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Closing Date in connection with the transactions herein and the continued operation of the business conducted by the Loan Parties in substantially the same manner as conducted prior to the Closing Date. Each such Governmental Authorization or consent is in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, could not have a Material Adverse Effect. All applicable waiting periods have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents. No action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing is pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion has expired; and
(G) No temporary restraining order, preliminary or permanent injunction or other order preventing the Borrower and the Guarantors, the Administrative Agent or any Lender Party from entering into this Agreement or the other Credit Documents or consummating the transactions contemplated hereby or thereby shall have been issued by any court of competent jurisdiction or other Governmental Authority having authority over any such Person and remains in effect, and no applicable Governmental Rules shall be enacted or deemed applicable to the Credit Documents by a Governmental Authority having authority over any such Person that makes the closing of the Credit Documents or any extensions of credit thereunder illegal.
(xi) At least fifteen Business Days prior to the Closing Date, each Loan Party has provided the documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act;
(xii) All fees and expenses payable to the Administrative Agent Agent, the Lenders and the Lenders Joint Lead Arrangers on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paidClosing Date;
(ixxiii) Payment of all All fees and expenses of counsel to the Administrative Agent invoiced through the Effective Date Closing Date;
(xiv) The absence of any action, suit, investigation or proceeding pending or, to the extent knowledge of the Borrower Loan Parties, threatened in any court or CBII has received an invoice thereforbefore any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect; and
(xxv) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents. [Date] ▇▇▇▇▇ Fargo Bank, National Association as the Administrative Agent MAC D1109-019 ▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ Blvd. Charlotte, NC 28262 Attention: Syndication Agency Services Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ E-mail: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
1. Reference is made to that certain Credit Agreement, dated as of November 20, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among: (1) ARC DOCUMENT SOLUTIONS, LLC, a Texas limited liability company (the “Borrower”); (2) each of the financial institutions party thereto from time to time (collectively, the “Lenders”); and (3) ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Swing Line Lender and as L/C Issuer. Unless otherwise indicated, all terms defined in the Credit Agreement have the same respective meanings when used herein.
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being releasedReserved;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Chiquita Brands International Inc)
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. 364-DAY CREDIT AGREEMENT If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. (a) Sterling shall have received a list of ITI's shareholders containing the name, address, and number of shares held by each ITI shareholder as of the date of Closing, certified by an executive officer of ITI as being true, complete and accurate; and
(b) Sterling shall have received such further opinions, documents, certificates or instruments relating to the transactions contemplated hereby as Sterling may reasonably request.
(c) Sterling shall have received financial statements (the "Closing Financial Statements") of ITI in form complying with the financial statement requirements of acquired businesses under applicable SEC accounting rules, which financial statements shall (i) Evidence include an audited balance sheet at December 31, 2005 and audited statements of insurance endorsements or certificates naming operations, cash flows and stockholders’ equity for each of the Administrative Agent two years ended December 31, 2005 and an unaudited balance sheet, statement of operations and statement of cash flows at, and for the quarter and year to date period ending with the 2006 fiscal quarter most recently completed as lenders’ loss payeeof the Closing Date and for the same period in 2005, mortgagee all prepared in accordance with SEC Regulation S-X, and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of not vary materially from the Indebtedness under ITI Financial Statements. For purposes hereof, the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Closing Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger Statements shall be satisfied that all Existing Indebtednessconsidered to vary materially from the ITI Financial Statements if, among other than the Surviving Indebtednessthings, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed total liabilities reflected on the Effective Date, Closing Financial Statements exceed the total liabilities reflected on the ITI Financial Statements by more than $5,000 or (B) the filing total assets reflected on the ITI Financial Statements exceed the total assets reflected on the Closing Financial Statements by more than $5,000.
(d) Sterling shall have received a report of valuation experts, as called for by Section 4.12, indicating an ITI Appraised Value of not less than the Sterling Appraised Value.
(e) ITI shall have sold, or entered into a definitive agreement to sell, its ▇▇▇▇ ▇▇▇▇▇ franchise rights in China for not less than $1.3 million and shall have made arrangements, satisfactory to Sterling, to assure that all proceeds of such sale are deposited in accounts under the exclusive control of authorized officers of ITI.
(f) ITI shall own each of the Intellectual Property Security Agreements to be filed ITI Businesses in the appropriate indexes of the United States Patent manner and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentsreflected on Schedule 1.19.
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv1) A certificate of the President, Chief Financial Officer, Chief Accounting an Executive Officer or Treasurer of CBIIBorrower, addressed to the Administrative Agent Purchaser and dated the Effective Date, certifying that each that:
(a) The representations and warranties set forth in PARAGRAPH 4.01 and in the other Credit Documents are true and correct in all material respects as of such date (except as otherwise scheduled in the Investment Agreement and except for such representations and warranties expressly made as of a specified date, which shall be true as of such date);
(b) No Default or Event of Default has occurred and is continuing or will result from the execution by Borrower of the Significant Subsidiaries is and, after the execution and delivery Credit Agreement;
(c) All of the Credit Documents are in full force and the consummation of the transactions contemplated thereby, will be Solvent;effect; and
(vd) The Lead Arranger No Material Adverse Effect shall be satisfied that all Existing Indebtednesshave occurred since September 30, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;1996; and
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii2) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to Purchaser's counsel through the Effective Date (to be paid from the proceeds of the initial Advance). SCHEDULE 4.01(c) DISCLOSED CONFLICTS See Attachment. SCHEDULE 5.01(a) EXISTING INDEBTEDNESS See Attachment. EXHIBIT A FORM OF CONVERTIBLE PROMISSORY NOTE THIS CONVERTIBLE PROMISSORY NOTE (THIS "CONVERTIBLE NOTE") HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND LAWS OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO BORROWER THAT SUCH REGISTRATION IS NOT REQUIRED. $2,750,000 January __, 1997 FOR VALUE RECEIVED, NOR'▇▇▇▇▇▇ BREWING COMPANY, an Oregon corporation ("BORROWER") hereby promises to pay to the order of UNITED BREWERIES OF AMERICA, INC., a Delaware corporation, or its successors or assigns ("PURCHASER"), the principal sum of TWO MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($2,750,000) or, if less, the aggregate unpaid principal amount of all Advances (including all fees payable the Existing Advance) made by Purchaser to Rabobank Borrower pursuant to the Fee Letter) shall have been paid;
Credit Agreement (ix) Payment of as hereinafter defined), and interest accrued thereon as described in Section 3 below all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance accordance with the terms and conditions contained set forth herein. This Convertible Note is the Convertible Note referred to in this Agreement that certain Credit Agreement, dated as of January __, 1997, by and between Borrower and Purchaser (the "CREDIT AGREEMENT") and is subject to the terms and conditions of the Credit Agreement, including the rights of prepayment and the other rights of acceleration of maturity set forth therein. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit DocumentsAgreement.
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which FIVE YEAR CREDIT AGREEMENT may be requested by the Administrative Agent or any Lender to comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Other Items. (i) Evidence of insurance endorsements or certificates naming the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
(ii) The pay-off letter in respect of the Indebtedness under the Existing Credit Agreement, executed and delivered by the parties thereto, and evidence that all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure and ownership structure of the CBII Entities as previously disclosed to the Administrative Agent with any changes thereto satisfactory to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence documents relating thereto as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably request request, including any documentation and other evidence which may be requested by the Administrative Agent or any Lender to establish comply with and/or administer any “know your customer” or other customer identification related policies and procedures required under applicable laws and regulations. If the Company shall designate as a Designated Borrower hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Administrative Agent and the Company, fulfill its Commitment by causing an Affiliate or branch of such Lender to act as the Lender in respect of such Designated Borrower. As soon as practicable after receiving notice from the Company or the Administrative Agent of the Company’s intent to designate a Subsidiary as a Designated Borrower, and in any event no later than five Business Days after the delivery of such notice, for 364-DAY CREDIT AGREEMENT a Designated Borrower that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or a jurisdiction listed on Schedule II, any Lender that (x) that is prohibited by law or by any bona fide policy from lending to, establishing credit for the account of and/or doing any business with such Designated Borrower directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph or (y) reasonably determines that it would incur additional expenses (including taxes) by lending to such foreign Borrower (a “Protesting Lender”) shall so notify the Company and the Administrative Agent in writing. With respect to each Protesting Lender, the Company shall, effective on or before the date that such Designated Borrower shall have the right to borrow hereunder, either (A) notify the accuracy Administrative Agent and completeness such Protesting Lender that the Commitments of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty Protesting Lender shall be true and correct in all respects) both immediately before and after giving effect terminated; provided that such Protesting Lender shall have received payment of an amount equal to the Transaction outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, or (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentscancel its request to designate such Subsidiary as a “Designated Borrower” hereunder.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Stanley Black & Decker, Inc.)
Other Items. Effective as of the Opt-Out Date, upon express written request by the Continuing Party, the Opt-Out Party shall do the following as requested by the Continuing Party, (ia) Evidence of insurance endorsements to the extent permitted by Applicable Law and requested by Continuing Party, assign any contracts related to Product in the Territory to Continuing Party or certificates naming its designee (including by requesting and using good-faith efforts to obtain any required consents) to the Administrative Agent as lenders’ loss payee, mortgagee and additional insured, as required by Section 5.01(d);
extent permissible thereunder; (ii) The payat Opt-off letter Out Party’s option, license or assign to the Continuing Party (or its Affiliate or Sublicensee) the trademark(s) used for the Product in respect the Opt-Out Party’s Licensed Territories, for use in Developing and Commercializing the Product in the Field in such Licensed Territories; (iii) if it can be done in a manner that preserves Product quality, sell and transfer to the Continuing Party some or all of the Indebtedness under the Existing Credit Agreementinventory of Product, executed and delivered as requested by the parties Continuing Party, in possession of the Opt-Out Party (or its Affiliates or Sublicensees) and the Continuing Party shall reimburse the Opt-Out Party the cost of such inventory; and (iv) cooperate to promptly transfer ownership of all Regulatory Filings and Regulatory Approvals specific to the Product, and responsibility for regulatory communication held by the Opt-Out Party or its Affiliates or Sublicensees in the Opt-Out Party’s Licensed Territories to the Continuing Party or its designee. In the event that the Parties are not permitted to transfer Regulatory Filings or Regulatory Approvals under clause (iv) above pursuant to Applicable Law, the Parties shall cooperate to establish a right of access and reference to such filings and approvals for the Continuing Party or its designee, and the Opt-Out Party or its Affiliate or Sublicensee shall maintain such filings and approvals, and take any actions reasonably requested by the Continuing Party or its designee with respect thereto, and evidence that thereafter the Opt-Out Party shall transfer ownership of all existing Liens on any assets of the CBII Entities other than Permitted Liens have been or concurrently with the Effective Date are being released;
(iii) A hierarchy report for the CBII Entities, setting forth the relationship among such Persons, certified by the Secretary or an Assistant Secretary of CBII confirming the capital structure Regulatory Filings and ownership structure of the CBII Entities as previously disclosed Regulatory Approvals to the Administrative Agent with any changes thereto satisfactory Continuing Party or its designee as and when it becomes permissible to the Administrative Agent;
(iv) A certificate of the President, Chief Financial Officer, Chief Accounting Officer or Treasurer of CBII, addressed to the Administrative Agent and dated the Effective Date, certifying that each of the Significant Subsidiaries is and, after the execution and delivery of the Credit Documents and the consummation of the transactions contemplated thereby, will be Solvent;
(v) The Lead Arranger shall be satisfied that all Existing Indebtedness, other than the Surviving Indebtedness, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments related thereto terminated;
(vi) All Governmental Authorizations necessary in connection with the Transaction and the Facilities (except for (A) the filing of the UCC financing statements to be filed on the Effective Date, (B) the filing of the Intellectual Property Security Agreements to be filed in the appropriate indexes of the United States Patent and Trademark Office relative to patents and trademarks, and the United States Copyright Office relative to copyrights on the Effective Date or (C) as otherwise permitted under the Post Effective Date Requirements Letter Agreement) shall have been obtained and shall remain in effect and all applicable waiting periods shall have expired without any action being taken by any competent Governmental Authority that could reasonably be expected to have a material adverse effect on the ability of the Borrower and the Guarantors to perform their obligations under the Credit Documents;
(vii) All Pre-Commitment Information shall be true, correct and complete in all material respects. No additional information that pertains to the period prior to the execution of the Commitment Letter shall have come to the attention of the Administrative Agent, any of the Lead Arranger or the Lenders that is inconsistent with the Pre-Commitment Information and could reasonably be expected to have a Material Adverse Effect;
(viii) All fees and expenses payable to the Administrative Agent and the Lenders on or prior to the Effective Date (including all fees payable to Rabobank pursuant to the Fee Letter) shall have been paid;
(ix) Payment of all fees and expenses of counsel to the Administrative Agent through the Effective Date to the extent the Borrower or CBII has received an invoice therefor; and
(x) Such other evidence as the Administrative Agent or any Lender may reasonably request to establish (A) the accuracy and completeness of the representations and warranties in all material respects (unless any such representation or warranty is qualified as to materiality, in which case such representation and warranty shall be true and correct in all respects) both immediately before and after giving effect to the Transaction and (B) the compliance with the terms and conditions contained in this Agreement and the other Credit Documentsdo so.
Appears in 1 contract
Sources: Collaboration Agreement (Rani Therapeutics Holdings, Inc.)